Case Note & Summary
The appeal arose from an order in Chamber Summons No. 597 of 1996 in B.C.C.C. Suit No. 2056 of 1964, decided by the City Civil Court on 24.4.1998. The decree for possession was passed in Suit No. 2056 of 1964. Execution Application No. 522 of 1995 was taken out by the decree holder, and a warrant of possession was issued on 16.10.1995. According to the bailiff's report dated 20.10.1995, when the decree was sought to be executed, the obstructionists (the present appellants) obstructed execution. The executing court treated the chamber summons as one under Order XXI Rule 97 of the Code of Civil Procedure. The chamber summons was opposed by the present appellants. The trial court, after hearing the parties, dismissed the chamber summons and directed removal of obstruction. The appellants, being the obstructionists, appealed against that order. The High Court heard counsel for the appellants and respondent Nos. 1 and 2. The court noted that the decree for possession was passed in 1964 and the obstructionists claimed independent title. However, the court found that the obstructionists failed to prove any independent right, title or interest in the suit property. The court held that the burden was on the obstructionists to show that they were in possession prior to the decree and that such possession was independent of the judgment-debtor. Since they failed to discharge that burden, the appeal was dismissed. The court upheld the order of the executing court directing removal of obstruction.
Headnote
A) Civil Procedure - Execution of Decree - Obstruction by Third Party - Order XXI Rule 97 CPC - The executing court is empowered to investigate and decide claims of obstructionists. The burden lies on the obstructionist to prove independent title or possession prior to the decree. In this case, the appellants failed to establish any right, title or interest in the suit property. (Paras 1-3) B) Civil Procedure - Burden of Proof - Obstructionist's Claim - Order XXI Rule 97 CPC - The obstructionist must prove that they were in possession of the property prior to the decree and that such possession was independent of the judgment-debtor. The appellants' claim of independent title was not supported by evidence. (Paras 2-3)
Issue of Consideration
Whether the appellants (obstructionists) had any independent right or title to the property that would entitle them to resist execution of the decree for possession.
Final Decision
Appeal dismissed. Order of the executing court directing removal of obstruction upheld.
Law Points
- Order XXI Rule 97 CPC
- execution of decree
- obstruction by third party
- independent title
- possession prior to decree
