Case Note & Summary
The petitioners, original decree holders in Execution Application No. 22/2008, filed a writ petition under Article 227 of the Constitution challenging the order dated 25/07/2022 passed by the Civil Judge, Senior Division, Panaji, dismissing their application under Order XXI Rule 97 read with Section 151 CPC for recall of the warrant of possession and for police aid. The background is that the petitioners had obtained a decree for possession against the judgment debtors. During execution, respondent no. 6, a third party, filed an obstructionist application claiming independent title and possession over the suit property. The Executing Court, after hearing both sides, allowed the obstructionist's application and directed delivery of possession to him. Subsequently, the decree holders filed the impugned application seeking recall of the warrant and police aid, which was dismissed. The High Court, in its judgment, held that the Executing Court had correctly exercised its discretion. The court noted that once possession was delivered to the obstructionist, the Executing Court became functus officio and could not recall the warrant. The decree holders' remedy, if any, would be by way of a separate suit for possession against the obstructionist, not by way of execution proceedings. The High Court found no material irregularity or illegality in the impugned order and dismissed the writ petition, upholding the Executing Court's order.
Headnote
A) Civil Procedure - Execution of Decree - Order XXI Rule 97 CPC - Recall of Warrant - The decree holders sought recall of warrant of possession and police aid after possession was delivered to a third party obstructionist. The Executing Court dismissed the application, holding that once possession is delivered, the court becomes functus officio and cannot recall the warrant. The High Court upheld this, finding no material irregularity or illegality in the impugned order. (Paras 1-14)
B) Civil Procedure - Execution of Decree - Section 47 CPC - Jurisdiction of Executing Court - The Executing Court has limited jurisdiction to execute the decree as it stands and cannot go behind the decree. The decree holders' remedy, if any, lies in a separate suit for possession against the obstructionist, not by way of execution proceedings. (Paras 10-14)
C) Civil Procedure - Execution of Decree - Order XXI Rule 97 CPC - Obstructionist - The obstructionist, a third party, claimed independent title and possession. The Executing Court, after hearing the obstructionist, allowed his objection and directed delivery of possession to him. The decree holders' subsequent application for recall was dismissed as the court had no power to review its own order in execution. (Paras 5-9)
Issue of Consideration
Whether the Executing Court erred in dismissing the application filed by the decree holders under Order XXI Rule 97 read with Section 151 CPC for recall of the warrant of possession and for police aid, after possession had already been delivered to the obstructionist/third party.
Final Decision
The High Court dismissed the writ petition, upholding the Executing Court's order dated 25/07/2022. No order as to costs.
Law Points
- Order XXI Rule 97 CPC
- Section 47 CPC
- Section 151 CPC
- Order XXI Rule 35 CPC
- Order XXI Rule 36 CPC
- Order XXI Rule 98 CPC
- Order XXI Rule 100 CPC
- Order XXI Rule 101 CPC
- Order XXI Rule 103 CPC
Case Details
2022 LawText (BOM) (07) 101
Writ Petition No. 86 of 2022
Mr. S.D. Lotlikar, Senior Advocate with Mr. Terence Sequeira and Ms. Sailee Kenny, Advocates for the Petitioners; Mr. Shivan Desai with Mr. Varun Bhandankar, Advocates for Respondent No. 6
Shri. Madan Waman Chodankar (Since Deceased) Now through his legal representatives, Smt. Medha Madan Chodankar, Mr. Jatin Madan Chodankar, Mr. Jaimeen Madan Chodankar
M/s. Keshav Malik Hardware Corp., Shri. Dyneshwar Keshav Malik, Shri Ramakant Keshav Malik, Shrikant Keshav Malik, Mr. Gurudas Malik (since deceased) through LRs, Mr. Tahir V. Isani
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Nature of Litigation
Writ Petition under Article 227 of the Constitution challenging an order of the Executing Court dismissing an application under Order XXI Rule 97 read with Section 151 CPC for recall of warrant of possession and police aid.
Remedy Sought
The petitioners (decree holders) sought recall of the warrant of possession and police aid to execute the decree.
Filing Reason
The Executing Court dismissed the application for recall of warrant after possession was delivered to a third party obstructionist.
Previous Decisions
The Executing Court had earlier allowed the obstructionist's application and directed delivery of possession to him. The decree holders then filed the application for recall, which was dismissed.
Issues
Whether the Executing Court erred in dismissing the application for recall of warrant of possession under Order XXI Rule 97 CPC?
Whether the Executing Court had jurisdiction to recall the warrant after possession was delivered to the obstructionist?
Submissions/Arguments
Petitioners argued that the Executing Court committed material irregularity in dismissing the application for recall of warrant and police aid.
Respondent No. 6 (obstructionist) argued that the Executing Court correctly dismissed the application as the court became functus officio after delivery of possession.
Ratio Decidendi
The Executing Court, after delivering possession to the obstructionist, becomes functus officio and cannot recall the warrant. The decree holders' remedy lies in a separate suit for possession, not by way of execution proceedings. The Executing Court's discretion to refuse recall was not shown to be perverse or illegal.
Judgment Excerpts
The Executing Court, after hearing the obstructionist, allowed his application and directed delivery of possession to him.
The decree holders' application for recall was dismissed as the court had no power to review its own order in execution.
Once possession is delivered, the court becomes functus officio and cannot recall the warrant.
Procedural History
The petitioners obtained a decree for possession. In execution, a third party obstructionist filed an application claiming independent title. The Executing Court allowed the obstructionist's application and directed delivery of possession to him. The decree holders then filed an application under Order XXI Rule 97 read with Section 151 CPC for recall of warrant and police aid, which was dismissed on 25/07/2022. The decree holders challenged this order by way of the present writ petition.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order XXI Rule 97, Section 47, Section 151, Order XXI Rule 35, Order XXI Rule 36, Order XXI Rule 98, Order XXI Rule 100, Order XXI Rule 101, Order XXI Rule 103
