Case Note & Summary
The petitioner, Smt. Girija Poojarthi, was the defendant No.7 in a suit for recovery of possession (O.S.No.374/1999) which was decreed on 24.07.2007. The decree holder, Smt. Kota Srilakshmi Urala, initiated execution proceedings in Ex.P.No.06/2008. The Executing Court issued a delivery warrant on 05.11.2016. The petitioner, who was the judgment debtor, obstructed the execution. The decree holder filed I.A.No.28 under Order XXI Rule 100 of the Code of Civil Procedure, 1908 (CPC) seeking re-delivery of possession. The Executing Court allowed the application on 15.10.2022, directing re-delivery. Aggrieved, the petitioner filed the present writ petition under Article 227 of the Constitution of India. The High Court examined the applicability of Order XXI Rule 100 CPC. It noted that Order XXI Rule 100 CPC applies only when the obstruction is caused by a person claiming right through the judgment debtor, not by the judgment debtor herself. Since the obstruction was caused by the judgment debtor (the petitioner), the proper remedy for the decree holder was under Order XXI Rule 97 CPC, which allows the decree holder to apply for removal of obstruction. The Court held that the Executing Court erred in allowing the application under Order XXI Rule 100 CPC. The High Court quashed the impugned order and dismissed the application I.A.No.28, leaving it open to the decree holder to file an appropriate application under Order XXI Rule 97 CPC if so advised.
Headnote
A) Civil Procedure Code - Execution Proceedings - Order XXI Rule 100 CPC - Applicability - Order XXI Rule 100 CPC applies only when the obstruction is caused by a person claiming right through the judgment debtor and not by the judgment debtor herself - The provision is meant for third party claimants, not for the decree holder seeking possession against the judgment debtor - Held that the Executing Court erred in allowing the application under Order XXI Rule 100 CPC (Paras 5-7). B) Civil Procedure Code - Execution Proceedings - Order XXI Rule 97 CPC - Remedy for Decree Holder - When the judgment debtor obstructs execution, the decree holder must file an application under Order XXI Rule 97 CPC, not under Order XXI Rule 100 CPC - The Executing Court can then remove the obstruction and deliver possession - Held that the proper remedy for the decree holder was under Order XXI Rule 97 CPC (Paras 5-7). C) Civil Procedure Code - Execution Proceedings - Order XXI Rule 101 CPC - Bar of Separate Suit - All questions arising between the parties to the execution proceedings must be determined by the Executing Court and no separate suit lies - The Executing Court has jurisdiction to decide all disputes relating to execution, discharge, or satisfaction of the decree (Para 6).
Issue of Consideration
Whether the Executing Court was justified in allowing the application filed by the decree holder under Order XXI Rule 100 of CPC for re-delivery of possession when the obstruction was caused by the judgment debtor herself?
Final Decision
The High Court allowed the writ petition, quashed the impugned order dated 15.10.2022 passed in I.A.No.28 in Ex.P.No.06/2008 by the Principal Civil Judge (Junior Division), Kundapura, and dismissed the application I.A.No.28. The Court left it open to the decree holder to file an appropriate application under Order XXI Rule 97 CPC if so advised.
Law Points
- Order XXI Rule 100 CPC applies only when obstruction is caused by a person claiming right through judgment debtor
- not by judgment debtor himself
- Order XXI Rule 97 CPC is the appropriate remedy for decree holder when judgment debtor obstructs execution
- Order XXI Rule 101 CPC bars separate suit and requires all questions to be determined in execution
- Article 227 of Constitution of India is for superintendence
- not to correct errors of fact.
