'Any Person' Includes All Resisting Possession, Executing Courts Empowered To Adjudicate Obstruction Claims Under O.21 R.97 CPC: J&K High Court

For context, Order 21 Rule 97 CPC provides that when a decree-holder faces resistance in taking possession of property under a decree, they may apply to the executing court for relief. The executing court has the power to determine whether the obstruction is justified, adjudicate on title claims raised by third parties and ensure that possession is delivered to the rightful decree-holder.

Explaining the mandate of expression “any person” appearing in Order 21, Rule 97 the court stated,

“.. by using this inclusive language, the provision encompasses all individuals opposing execution of a decree irrespective of whether they are bound by the decree and includes within its ambit tenants, persons claiming an independent right over the property or even strangers”.

It added,

“Therefore, the executing court is empowered to examine and determine such claims within the execution proceedings, eliminating the need for institution of a separate litigation”

These observations arose from an appeal challenging the dismissal of a civil suit by the trial court, which had held that the plaintiffs had an alternate remedy before the executing court under Order 21 Rules 99 to 103 CPC.

The case stems from a dispute over land located on Akhnoor Road, Jammu. The plaintiffs filed a suit challenging a 1979 decree passed in a previous partition suit, arguing that it had wrongly included the disputed land. Challenge was also thrown at a sale deed dated June 1, 2001, executed by Wazir Mansa Ram in favor of respondent No. 3, asserting that the land belonged to Mandir Shiv Ji Maharaj Peer Kho and was never part of the Wazir family's property.

The plaintiffs contended that the land had been leased to them and was wrongfully included in the earlier decree, affecting their ownership rights. The trial court dismissed the suit, holding that their claim should have been raised before the executing court under Order 21 Rule 99 CPC, rather than through a fresh civil suit.

Aggrieved, the plaintiffs (appellants) argued that the land was never part of the partition suit filed nor was it included in the preliminary decree of 1964. The inclusion of the land in the final decree of 1974 was erroneous and fraudulent, as the property originally belonged to Mandir Peer Kho, they submitted.

Stating that they were not party to the previous litigation, and hence, they had no opportunity to object earlier they added that the trial court's reliance on Order 21 Rule 99 CPC was misplaced, as the rules governing execution (Rules 97 to 103) were introduced only in 1976, whereas the execution proceedings in question occurred before this amendment.

Conducting an in-depth legal analysis while adjudicating the appeal the Court made key observations on the scope of Order 21 Rule 97 CPC, execution proceedings, retrospective applicability of amendments, and finality of decrees.

The Court observed that Order 21 Rule 97 allows a decree-holder to approach the executing court if possession is obstructed. The phrase "any person" in Rule 97(1) is not limited to the judgment-debtor but includes all individuals who resist execution, including tenants, third parties, or anyone claiming an independent right over the property.

“By using this inclusive language, Rule 97(1) ensures that the executing court has the jurisdiction to decide all claims arising from resistance or obstruction, eliminating the need for a separate suit,” the Court noted.

The Court further emphasized that the amendment of 1976 to the CPC expanded the jurisdiction of executing courts, making them the sole authority to decide all claims relating to possession within execution proceedings itself.

Observing that separate Suit not maintainable when execution remedy exists the Court upheld the trial court's decision, affirming that any challenge to possession should be raised before the executing court under Order 21 Rules 99 to 103 CPC and a separate suit is barred when an alternate remedy exists within execution proceedings.

The plaintiffs should have contested the execution under Rule 99, which allows third parties to object if dispossessed by a decree-holder, the court stated and added,

“The intent of the legislature in amending Order 21 was to prevent unnecessary litigation by consolidating all execution-related claims within the executing court itself,”

Addressing a key argument by the plaintiffs was that the execution proceedings had occurred in 1976, before the amendment introduced Rules 97 to 103, the Court cited Section 97(3) of the CPC Amendment Act, 1976, which explicitly states that:

"Amended provisions shall apply to all pending suits and proceedings, irrespective of when the cause of action arose.”

Accordingly, the Court held that the amended rules were applicable, reinforcing that the plaintiffs' claim should have been adjudicated within execution proceedings and not through a fresh suit.

In light of the above findings, the Court dismissed the appeal, affirming the trial court's decision.

“For what has been observed, consideredand analysed hereinabove, the Trial Court cannot be said to have faulted.. thus not calling for any interference by this Court”, Justice Wani concluded.

Case Title: Peer Rattan Nath Mahant Sh. Shiv ji Maharaj Peer kho Vs Wazir Onkar Singh

Citation: 2025 LiveLaw (JKL) 69

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