Case Note & Summary
The revision petitions arose from the execution of eviction decrees passed by the Small Causes Court in three eviction petitions filed by the decree holders (landlords) under Sections 27(1)(a) and (r) of the Karnataka Rent Act, 1999. The decrees, directing the tenants to vacate and deliver possession, were not challenged and became final. The decree holders filed execution petitions seeking possession, and the court issued a delivery warrant. On 10 August 2011, the warrant was executed with police assistance, possession was taken, and the premises were delivered to the decree holders, as recorded in the bailiff’s report and mahazar. On the same day, the objectors (revision petitioners) filed applications under Order 21 Rule 97 and 99 of the Code of Civil Procedure, 1908, claiming they were in possession and had been forcibly dispossessed. They contended that the tenants had surrendered possession to them as the true owners and that the Executing Court was required to hold a full enquiry into their claim. The decree holders opposed, arguing that the objectors were never in possession, that there was collusion between the objectors and the judgment debtors, and that the applications were not maintainable. The Executing Court dismissed the applications by common order dated 25 January 2012, holding that the report of the court bailiff showed that the judgment debtors were in possession at the time of execution and the objectors’ claim of possession was not prima facie sustainable. The revision petitioners challenged this order. The High Court, upon hearing arguments, framed two points: whether the Executing Court ought to have held a full enquiry by recording evidence, and whether the dismissal was justified. The court noted that under Order 21 Rule 97, the Executing Court is required to adjudicate all questions arising between the parties or their representatives. However, the nature of the enquiry is not necessarily a full‑dress trial; the court may decide the maintainability of the application on the basis of the materials on record. In the present case, the objectors failed to produce any credible evidence to show that they were in actual physical possession at the time of delivery. The bailiff’s report and mahazar established that possession was already taken and handed over to the decree holders. The court held that an application under Order 21 Rule 97 and 99 is not maintainable when the objector is not in possession. Consequently, the Executing Court was justified in dismissing the applications without conducting a full enquiry. The revision petitions were dismissed, and the order of the Executing Court was confirmed.
Headnote
A) Execution of Decree – Obstruction to Possession – Nature of Enquiry under Order 21 Rule 97 – Code of Civil Procedure, 1908, Order 21 Rules 97, 99, Section 47 – The Executing Court is bound to determine all questions relating to execution, but if an application under Order 21 Rule 97 is not maintainable on the face of the record because the objectors were not in possession at the time of delivery, the court may dismiss it without a further enquiry. Held that the objectors failed to establish possession and the delivery had already been effected; the Executing Court was justified in dismissing the applications. (Paras 3, 8-10)
B) Execution – Maintainability of Obstruction Application – Requirement of Physical Possession – Code of Civil Procedure, 1908, Order 21 Rule 97 and 99 – For an application under Order 21 Rule 97 to be maintainable, the objector must show that he was in actual physical possession of the property and was dispossessed by the execution process. Where the bailiff’s report and mahazar show that possession was handed over to the decree holder, the objectors cannot claim they were in possession. Held that the applications were correctly dismissed as not maintainable. (Paras 3, 9-10)
Issue of Consideration
Whether the Executing Court was justified in dismissing the applications under Order 21 Rule 97 and 99 CPC without holding a full enquiry or recording evidence, and what is the nature of enquiry contemplated under these provisions
Final Decision
The High Court dismissed the revision petitions, upholding the Executing Court’s order. The applications under Order 21 Rule 97 and 99 CPC filed by the objectors were not maintainable because the objectors were not in possession at the time of delivery of possession, and no full enquiry was required.
Law Points
- All questions relating to execution
- discharge or satisfaction of decree to be determined by executing court
- not by separate suit
- Under Order 21 Rule 97 CPC
- if resistance or obstruction to possession of immovable property
- decree holder may make application
- Objectors must be in actual physical possession at time of obstruction to maintain application
- Executing Court need not hold full enquiry with recording of evidence if application prima facie not maintainable
- Mere claim of title or surrender by tenants not sufficient without proof of possession
- Execution report and mahazar constitute prima facie evidence of delivery of possession
Case Details
2013 LawText (KAR) (12) 4
HRRP No. 110/2012 c/w 111/2012 & 112/2012
K. Chandranath Ariga, R.B. Sangamesh
Dhanalakshmi, Natarajan, Kathyayini and Others
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Nature of Litigation
Revision petitions under Section 46(1) of the Karnataka Rent Act, 1999, against the order of the Executing Court dismissing the objectors' applications under Order 21 Rule 97 and 99 read with Section 151 of the Code of Civil Procedure, 1908, as not maintainable.
Remedy Sought
The revision petitioners (objectors) sought to set aside the Executing Court's order dated 25.01.2012 dismissing their applications and to direct the Executing Court to adjudicate their claim of possession and obstruction.
Filing Reason
The objectors claimed that they were the true owners of the premises, that the tenants had surrendered possession to them, and that they were forcibly dispossessed by the court bailiff during execution of the eviction decree. They argued that the Executing Court ought to have conducted an enquiry into their possession under Order 21 Rule 97 CPC.
Previous Decisions
The eviction petitions (HRC Nos. 593/2002, 596/2002, 592/2002) were allowed by the Small Causes Court, Bangalore, on 15.07.2011, directing the tenants to vacate and deliver possession. No appeal was filed against these decrees. The Executing Court dismissed the objectors' obstruction applications as not maintainable by common order dated 25.01.2012.
Issues
Whether the Executing Court ought to have held an enquiry by way of recording evidence and thereafter examined the claim; if not, what is the nature of enquiry contemplated under Order 21 Rule 97 CPC?
Whether the Executing Court was justified in dismissing the application filed under Order 21 Rule 97 and 99 CPC by the objectors as not maintainable?
Submissions/Arguments
Objectors contended that they had stated in the application that judgment debtors had surrendered possession to them and that the Executing Court did not hold an enquiry to ascertain their possession; that though they caused obstruction, the Executing Court did not determine whether they were bound by the decree; that the Executing Court erroneously found that the earlier owner had lost right, title and interest without enquiry; that the Small Causes Court's finding that the tenants were entitled to possession until mortgage was redeemed did not mean the owners (objectors) lost title; that since tenants had delivered possession to the objectors, the Executing Court should have adjudicated the dispute rather than dismissing the applications; and that all disputes between decree holder and any objector must be adjudicated by the Executing Court under Order 21 Rule 97 CPC.
Decree holders argued that the objectors were not present at the time of execution and no material established their possession; that there was collusion between the objectors and judgment debtors to defeat the decree; that the primary requirement for an application under Order 21 Rule 97 and 99 is that the objector must be in possession; that if the objector has no possessory right or title, the Executing Court can dismiss the application as not maintainable; that the memos filed by the tenants stating they had surrendered possession to the owners were rejected on 29.06.2011 and that order was not challenged; and that the tax paid receipts submitted by the objectors were dated after the delivery warrant was issued, indicating lack of prior possession.
Ratio Decidendi
An application under Order 21 Rule 97 and 99 of the Code of Civil Procedure, 1908, is maintainable only if the objector is in actual physical possession at the time of the obstruction or dispossession. Where the execution report and mahazar show that possession has already been delivered to the decree holder and the objector fails to produce credible evidence of possession, the Executing Court may dismiss the application as not maintainable without holding a full enquiry or recording evidence. The mere claim of title or surrender by tenants is not enough; possession must be proven.
Judgment Excerpts
The Executing Court has dismissed these applications on the ground that report submitted by the Court Ameen would indicate that judgment debtors were in possession of the schedule premises at the time of executing the decree and contention of the objectors that they were in possession of the property and subsequently dispossessed by the Court Ameen forcibly prima facie holds no water amongst other reasons assigned by it.
All disputes between the decree holder and any person objecting to it, is to be adjudicated by the Executing Court to avoid long drawn procedure of adjudicating a suit.
Procedural History
Eviction petitions filed under Karnataka Rent Act, decrees of eviction passed on 15.07.2011; execution petitions filed; delivery warrant issued and executed on 10.08.2011, possession handed over to decree holders; objectors filed applications under Order 21 Rule 97 & 99 CPC on 10.08.2011; Executing Court dismissed applications as not maintainable on 25.01.2012; revision petitions filed under Section 46(1) of Karnataka Rent Act, 1999.
Acts & Sections
- Karnataka Rent Act, 1999: 46(1), 27(1)(a), 27(1)(r)
- Code of Civil Procedure, 1908: Order 21 Rule 97, Order 21 Rule 99, Section 47, Section 151
