Legislation and Government Policy

Determining Claims Preferred By Third Parties in Execution Proceedings: The Dynamics of (Dis)possession (Part II)

Sarthak Wadhwa

Fighting an already conquered battle: Delays in Execution Proceedings: Part II.

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The first-part of this post has already touched upon the issues with determining third-party claims at the time of execution – by first, charting out the judicial history of the issue with reference to the pendency created thereby; second, extrapolating the relevant legal standards used by Courts today; third, analyzing the case of Bangalore Development Authority v N Nanjappa [LL 2021 SC 712] from these legal standards; fourth, critiquing the findings in  that case by juxtaposing them against the statutory context of Order XXI of the Code of Civil Procedure, 1908 (CPC); and, fifth, showing how the determination of third-party claims at the time of execution is inconclusive, and needs clarification. Building up on that,, this follow-up post seeks to prescribe a feasible manner in which to address this issue.

First, this post utilizes legislative intent and the foundations of Indian procedural law and further elaborates on the distinction between Rule 97 and Rule 99. Second, in light of this distinction, it lays down the theoretical underpinnings of ‘possession,’ the ‘right, title or interest’ emergent therefrom, and the different modes of divestment at the time of ‘dispossession’ under these Rules. Third, in light of these theoretically sound distinctions between the two Rules, it clarifies how the conflation of these Rules may result in drastic consequences for the parties to the execution proceedings, especially for the judgment-debtorwhose decretal right may be militated against by alien interests. Lastly, it presents a prescriptive manner in which executing courts can observe this difference when determining third party claims. Navigating these threads of argument, the piece argues why Rule 99 was more suited for use in the BDA case, than Rule 97.

‘Obstructing Execution’: Differentiating Rule 97 & Rule 99

As discussed in the previous post, it is relevant to note that Rule 97 and Rule 99 envisage different situations despite protecting similar interests; whereas Rule 97 allows a decree-holder to remove any obstruction from the decretal property by any other person, Rule 99 allows such other persons to avoid being dispossessed of decretal-property by establishing a more-complete possessory interest therein. The purport of Rule 97 is to prevent the judgment debtor or any other person instigated thereby from occasioning any obstruction upon the concerned property without just cause; any alienating transfer made thereby is held to be a nullity and possession is restored to the applicant decree-holder. However, in the present case the BDA does not occupy a similar position vis-à-vis the decretal property: the BDA, which is alien to the dispute from which the impugned decree arises, possesses the title to the property which is being undermined by the respondent decree-holder. As such, it can be said that it is being dispossessed of its interest by the decree-holder – as envisaged in Rule 99.

This simple construction however is denied by a number of cases wherein the the ratione personae jurisdiction of the applications made under these distinct rules is needlessly conflated. In Noorduddin v Dr. K L Anand [(1995) 1 SCC 242] the Supreme Court inquired whether a claim under Order XXI Rule 97 was validly appreciated by the executing court. In this case, the respondent became the owner of several evacuee properties after their erstwhile owners moved to Pakistan upon Partition: however, when he tried to obtain possession thereof, the relatives of such evacuees sought to claim an interest therein. The Court held that a third party claiming an independent right over the property can move the executing court under Rule 97 – despite such an inference finding no basis in the text of Rule 97. In fact, the Court baldly states that an independent third party can seek to ventilate its claims under Rule 97 without any inquiry into how or why such an interpolation is necessary.

Perhaps the fact matrix in Ashan Devi v Phulwasi Devi [(2001) 2 BLJR 1295] is more relevant for critique considering that it is closer to the BDA’s case. In this case, the decree holder had an agreement of sale on which a suit of specific performance was pursued and a decree to that effect was obtained. However, before such decree the decretal property had already been sold to the independent claimant who now insisted on resisting the execution of this degree. The appellant called into question the applicant’s reliance on Rule 99 by stating how the applicant never physically possessed the property they claimed to have been disposed of. However, the Court resisted such insistence on the ‘physical’ aspect of dispossession, since it is unfounded in the open texture definition of ‘possession’ in law. Therefore, dispossession occurs at a time prior to physical occupation of or physical removal from the decretal property – at the time of the decree, as indicated by Rule 35 of Order XXI.

‘Dispossession’: Disposing a ‘Right’?

Rule 35 of Order XXI states the general possessory implications of a decree for immovable property. Rule 35(1) grants to the decree-holder the possession of the immovable property, ordering for the delivery thereof even by vacating any other occupant or user of the property. However, when considered against the volatility of tenancy claims – the decree might not appear to protect the decree-holder against any and all ‘right, title or interest’ that a third-party tenant may arbitrarily exercise over the decretal property. For example , in Ghan Shyam Das Gupta v Anant Kumar Sinha [(1991) 4 SCC 379], the appellant had obtained a decree of eviction against the tenant-respondent. However, the respondent’s relatives claimed to be independent tenants in their own regard and refused to be bound by the decree. These relatives were given an opportunity to be heard, staying the operation of the decree insofar as their interest was concerned. However, such opportunity was obtained via a writ petition which was held to be an incorrect mode of ventilating such interest. Subsequently, such right could not be secured under Order XXI of the CPC.

It is for this reason that Rule 36, a specific rule, deals with how decretal property must be taken possession of where it is occupied by a tenant or anyone else entitled to such use. Such tenancy rights (and any other authority exercised over the property, as dealt with under Rule 35(3)) derive from the extinguished primary right of the judgment debtor. In such a case a mere public notice requirement is envisaged by the CPC, and the tenants are expected to cease to exercise any derivative right over the property once the same was given possession of to the decree-holder. To this effect, it cannot be said that such rights can be ventilated through the medium of Rule 99, as held in Brahmdeo Choudhary v Rishikesh Prasad Jaiswal [(1997) 3 SCC 694].

However, in the present case – the BDA’s title to the decretal land is in no way contingent upon the rights of any parties to the suit initiated by the respondent decree-holder. It continues to bear an independent title over the decretal property which is more proper than the one obtained by the decree-holder. Thus, upon the pronouncement of the impugned decree and the delivery of possession to the respondent – the BDA is dispossessed of its interest in the land by the operation of Rule 35(1). This would imply that the only provision under which the BDA could not move the executing court would be Rule 99 complaining of wrongful dispossession post fact.

According to the above cases, the occasion of dispossession is what enables an application to be filed under Rule 99 – and, that in anticipation of but pending such dispossession, an application can be made under Rule 97. However, the creation of a fictitious inference enabling an independent claimant to move the court under Rule 97 in anticipation of dispossession – would seriously discredit the generality and force of Rule 35. It is further submitted that such an expansion of Rule 97, where the independent claimant is able to claim under it, is unwarranted for the reasons stated below.

Fruitless, Confusing Conflation of Provisions

Allowing independent claimants to apply for relief under Rule 97 is at best an impractical conflation of Rule 97 with Rule 99, and at worst, destructive of legislative intent. Upon comparing Rule 98 (wherein orders related to Rule 97 applications are discussed) with Rule 100 (wherein orders related to Rule 99 are discussed) – it is foremost noticeable that the executing Court retains the authority to make an order delivering possession of the decretal property to the applicant or to make any other order as it sees fit in the given circumstances. However, as discussed in the previous post, Rule 98 contains a sub-rule (2) which allows the Court to sentence the judgment debtor to civil prison at the instance of the applicant, if the judgment debtor is found to be obstructing the obtainment of possession over the decretal property.

A reading of Section 51(c) of the CPC with Rules 30-41 of Order XXI of the CPC reveals that civil detention is also otherwise provided for, for procedural violations; Section 74 extends such civil imprisonment to frivolous complaints about resistance to execution, as well. Further, it is also acceptable for decree-holders to seek multiple modes of execution simultaneously, with no order of precedence to dictate which of these modes must be pursued prior to the other. This has been laid down in Padrauna Rajkrishna Sugar Works Ltd. v Land Reforms Commissioner [(1969) 1 SCC 485] – where a plea for the attachment and sale of movable properties before immovable properties to settle judgemnt-debt was denied; this has been further upheld in Shyam Singh v District Collector, Hamirpur [(1993) Supp 1 SCC 693].

However, there is no reason why these recourses available to adversarial parties to a properly concluded suit,– should be similarly available to third-party strangers to the suit, the validity of whose rights is suspect. It must be noted that a judgment-debtor has notice of the decree sought to be executed by the decree-holder applicant; to this effect, the contents of the decree and the implications thereof cannot be circumvented by the same, except willfully. However, where a third party seeks to exercise such possessory right over the property, similar constructive notice cannot be made out on the part of the judgment-debtor to warrant such a harsh penalty as civil imprisonment. In effect, it would be highly problematic if an independent third-party can exercise the same right against the judgment-debtor as the decree-holder. And, if not, then there is no material distinction between Rule 97 and 99 of Order XXI – which cannot be the case.

It is not the case that an independent claimant cannot avail of the right under Rule 97 at all: when an order is made under Rule 100 (upon an application made under Rule 99), the same becomes executable as a decree by the operation of Rule 103 of Order XXI. In effect, the claimant can obtain a decree from the executing court which is independent of the original suit and decree – thus, granting the claimant possession over the concerned property. Such a decree would then be actionable under Rule 97 – against any person seeking to obstruct such possession as validated thereby. Such an execution mechanism is only preserved – even for third-party claimants who may exercise valid right, title or interest over the decretal property – where the distinction between Rules 97 and 99 are meaningfully observed.


Having thus looked at the provisions relating to dispossession and third-party claims during execution suits, it is pertinent to summarize the critical findings of this post. First, the interpretive dilution of the procedure for the determination of third-party claims during execution has expanded relief for persons who are not vetted by court procedure. Second, as a result of this, the broader scheme of the CPC (particularly Order XXI) is disturbed, making execution proceedings more onerous for decree-holders and judgment-debtors alike, plunging them into secondary trials with strangers to their original suit – inflating judicial pendency despite the final determination of the initial lis. Third, having identified this issue – this piece prescribes a reconciliatory interpretation that can remedy it by relying on a more textual and inter-textual approach to the schema of the CPC. And, finally, the posts together show that the execution of decrees should be conducted purposively to facilitate the ends of justice and it should not be thought of as a mere transaction to bookend a suit.

Finally, to borrow from the recent ruling in Asgar v Mohan Varma [(2020) 16 SCC 230], it must be acknowledged and respected that Order XXI is the complete Code on matters related to obstruction and resistance, and the powers conferred by the legislature upon the courts should not be used to undermine the carefully drafted provisions of the Code.

Sarthak Wadhwa is a current undergraduate student at the National Law School of India University (NLSIU), Bengaluru.