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Synopsis

The Supreme Court has said that an executing court cannot dismiss an execution proceedings merely on the ground that the suit property has been encroached upon by a third party, as it would defeat the right of decree holder to reap the benefit of litigation.

"It was the duty of the executing court to issue warrant of possession for effecting physical delivery of the suit land to the decree-holder in terms of suit schedule property and if any resistance is offered by any stranger to the decree, the same be adjudicated upon in accordance with Rules 97 to 101 of Order XXI of the CPC," a bench of Justices B V Nagarathna and Prashant Kumar Mishra said.

Dealing with a civil appeal filed by Dr Vijay Agarwal, legal representative of Smt Ved Kumari, the apex court said that the executing court could not have dismissed the execution petition by treating the decree to be inexecutable merely on the basis that the decree-holder had lost possession to a third party/encroacher. 

"If this is allowed to happen, every judgment-debtor who is in possession of the immoveable property till the decree is passed, shall hand over possession to a third party to defeat the decree-holder’s right and entitlement to enjoy the fruits of litigation and this may continue indefinitely and no decree for immovable property can be executed," the bench said.

The appellant here leased out land measuring 400 sq yards at Delhi's Shahdara to the Municipal Corporation of Delhi in 1973 for 10 years. The lease was not renewed in 1983 and the MCD was asked to hand over peaceful vacant possession of the suit land in 1988. The appellant filed a suit which was decreed in his favour in 1990.

The appellant then filed an execution proceeding which remained stayed untill 1994, on a plea by the MCD that a school was built on a portion of land and demolition would affect the career of 400 students. On a plea filed for issuance of fresh warrants of possession, the MCD undertook to initiate land acquisition proceedings. In 1999, the executing court dismissed the plea finding no serious effects were made for land acquisition in the last eight years.

Subsequently, however, in 2012, the executing court dismissed the execution petition on the ground the encroachers upon the land were not made a party to the suit, so it could not be decreed.

The Delhi High Court in 2016 dismissed the revision petition noting that the appellants could not identify the encroachers.

Before the top court, the appellant contended the judgment-debtor cannot escape the liability of satisfying the decree on the ground that the suit land has been encroached upon and it was the duty of the respondent MCD to identify the encroachers.

The appellant also said that Order XXI of the Code of Civil Procedure, 1908 (CPC) is a complete code for resolving all disputes, including against strangers to the decree. 

The MCD, for its part, said that the suit land was not under its possession rather it was in possession of the encroachers who should have been identified by the decree-holder. 

The apex court's bench, however, allowed the appeal and directed the executing court to execute the decree by effecting delivery of physical vacant possession to the appellant/decree holder in accordance with the provisions contained in Order XXI CPC.

It also noted since the inception of the suit, the MCD maintained that it was in possession of the suit land and school building had been constructed and it had initiated process of its acquisition. 

"Surprisingly, for the first time, on September 18, 2009, the respondent-Corporation informed the executing court that the suit land is not in its possession and the same has been encroached upon," it said.

"It is also important to note that throughout the course of the execution proceedings, no resistance was offered by any purported stranger/encroacher to the decree. In the absence of such resistance, the executing court had no occasion to invoke Order XXI, Rules 97 to 101, at the instance of the decree holder or otherwise. Unless, this procedure is adopted, the executing court could not have closed the execution proceedings by observing that the decree is inexecutable," the bench added.

Case Title: SMT. VED KUMARI V.  MUNICIPAL CORPORATION OF DELHI