Case Note & Summary
The present appeal was filed by the appellants, who were the legal heirs of the original judgment-debtor, Hiranappa (since deceased), and other family members. They were aggrieved by the order dated 29.02.2020 passed by the III Additional District and Sessions Judge, Kalaburagi, in Execution Case No.54/2015, whereby their application filed under Order 21 Rules 97, 98 and 101 of the Code of Civil Procedure, 1908 (CPC) was rejected. The execution case had been filed by the decree-holder, M/s Sriram Finance Co. Ltd., seeking to execute an arbitral award dated 30.08.2013 passed in Arbitration Case No.259/2013 for an amount of Rs.4,40,743/- with interest at 18% p.a. The appellants claimed that they were in possession of the property in question and that their rights were independent of the judgment-debtor. The executing court, without adjudicating their claim, rejected the application and confirmed the sale in favour of the auction purchaser. The High Court, after hearing the parties, held that the executing court had erred in rejecting the application without conducting an inquiry as mandated under Order 21 Rule 101 CPC. The court observed that the appellants had raised a bona fide claim of independent possession and title, which required adjudication. The High Court set aside the impugned order and remanded the matter back to the executing court for fresh consideration, directing that the application under Order 21 Rules 97, 98 and 101 CPC be decided on its merits after affording an opportunity of hearing to all parties. The appeal was allowed accordingly.
Headnote
A) Civil Procedure Code - Execution Proceedings - Third Party Claim - Order 21 Rules 97, 98, 101 CPC - The appellants, claiming to be in possession of the property as legal heirs of the original owner, filed an application under Order 21 Rules 97, 98 and 101 CPC before the executing court, which was rejected without adjudication. The High Court held that the executing court was duty-bound to investigate and decide the claim of the appellants regarding their independent right to possession, as per the mandate of Order 21 Rule 101 CPC. The order rejecting the application was set aside and the matter remanded for fresh consideration. (Paras 1-10) B) Civil Procedure Code - Execution Proceedings - Confirmation of Sale - Right of Third Party - Order 21 Rule 92 CPC - The High Court observed that the executing court had confirmed the sale in favour of the auction purchaser without considering the application filed by the appellants under Order 21 Rules 97, 98 and 101 CPC. The court held that the confirmation of sale was premature and could not be sustained as the rights of the appellants, who claimed independent possession, were not adjudicated. (Paras 8-10)
Issue of Consideration
Whether the executing court was justified in rejecting the application filed by the appellants under Order 21 Rules 97, 98 and 101 of CPC without adjudicating their claim of independent possession and title over the property.
Final Decision
The appeal is allowed. The impugned order dated 29.02.2020 passed in E.P.No.54/2015 by the III Additional District and Sessions Judge, Kalaburagi, is set aside. The matter is remanded back to the executing court for fresh consideration of the application filed by the appellants under Order 21 Rules 97, 98 and 101 CPC, in accordance with law, after affording an opportunity of hearing to all parties.
Law Points
- Order 21 Rules 97
- 98
- 101 CPC
- Executing Court's duty to adjudicate third party claims
- Right of a person in possession to be heard before confirmation of sale
- Distinction between obstruction by judgment-debtor and obstruction by third party claiming independent right
