Bombay High Court
M/S. Vishrut Enterprises Pvt. Ltd. ... vs Shri. Prakash Ganpat Thakur And Ors on 17 April, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:17488
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Arun Sankpal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11397 OF 2019
Vishrut Enterprises Pvt Ltd (Formerly known as
'M/s. Vishrut Infotech Pvt Ltd), A company Duly
Incorporated Under The Companies Act, 1956,
Having Its Registered Office at 803, 'Satra Plaza',
Plots Nos. 19/20, Sector - 19D, Vashi, Navi
Mumbai - 400 703, Through Its director Shri
Vishrut Tripathi ..Petitioner
Versus
1. Prakash Ganpat Thakur,
Adult (Deceased) Indian Inhabitant
Residing at Gavhan, Tal.-Panvel,
Dist-Raigad.
2. Gangabai Hiraji Mhatre
Gangabai Ganpat Thakur
(Maiden Name),
Age- __ Yrs, Indian Inhabitant
Residing at A-69/9, Sector-13,
New Panvel, Dist-Raigad.
3. Cidco of Maharashtra Ltd,
Through The Chief Land And
ARUN
Survey Officer 12.5% Department
RAMCHANDRA
SANKPAL Cidco Bhavan, CBD-Belapur,
Navi Mumbai.
Digitally signed
by ARUN
RAMCHANDRA
SANKPAL
Date: 2025.04.17
20:51:18 +0530
4. Rambali Joma Tandel
Age 55 Yrs, Indian Inhabitant
5. Digambar Joma Tandel
Age 57 Yrs, Indian Inhabitant
6. Dipak Joma Tandel
Age 41 Yrs, Indian Inhabitant
1/20
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7. Bhargav Joma Tandel
Age 34 Yrs, Indian Inhabitant
All Residing at Navghar,
Tal-Palghar, Dist-Raigad.
8. Ashabai Kesav Thakur
Age 51 Yrs, Indian Inhabitant
Residing at Gavahan Kopar,
Gavahan, Tal. Panvel,
Dist-Raigad.
9. Manjula Bhagwan Mhatre,
Age-44 Yrs, Indian Inhabitant
Residing at Selghar,
Post Gavahan, Tal-Panvel,
Dist-Raigad.
10. Bharti Prakash Mhatre,
Age-37 Yrs, Indian Inhabitant,
Residing at Nhavekhadi,
Tal. Panvel, Dist-Raigad.
11. Posu Alias Parsuram Mahadev Tandel,
(Since Deceased) through Legal Heirs
11.1 Somubai Parshuram Tandel
11.2 Dhruv Parshuram Tandel
11.3 Manohar Parshuram Tandel
11.4 Sagar Parshuram Tandel
11.5 Vinod Parshuram Tandel
11.6 Suryakant Parshuram Tandel
All having address at Village Nhavkhadi,
Post: Have, Tal. Panvel, Dist.Raigad.
12. Sayabai Alias Savitribai Kashinath Thakur
Age 70 Yrs, Indian Inhabitant,
Residing at Nhavkhadi, Tal-Panvel,
2/20
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Dist-Raigad.
13. Sunita Sitaram Naik,
Age-42 Yrs, Indian Inhabitant,
Residing Vahal, Post-Vahal,
Tal. Panvel, Dist-Raigad.
14. Sanjay Gosay Thakur,
(Since Deceased) through Legal Heirs
14.1 Indira Sanjay Thakur
14.2 Apurva Sanjay Thakur
14.3 Prachi Sanjay Thakur
Minor Daughter Through Her Legal
Guardian Indira Sanjay Thakur.
14.4 Prapti Sanjay Thakur
Minor Daughter Through Her Legal
Guardian Indira Sanjay Thakur.
All having Address at Village Shivaji Nagar,
Post, Govhan, Tal. Panvel, Dist. Raigad.
14.5 Neeta Govardhan Mhatre,
Having address at C/o. Govardhan Mhatre,
At-Ekatghar Jasai, Tal. Uran,
Dist. Raigad.
15. Anil Gosay Thakur,
Age 40 Yrs, Indian Inhabitant
Residing at Near Uran Depo,
Uran, Tal-Uran, Dist-Raigad.
16. Suchita Sandip Thakur,
Age - 36 Yrs, Indian Inhabitant,
Residing at Shivaji Nagar,
Post 0 Gavhan, Tal-Panvel,
Dist-Raigad.
17. Aishvarya Sandip Thakur,
Age - 20 Yrs, Indian Inhabitant,
Residing at Shivaji Nagar,
3/20
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Post-Gavhan, Tal-Panvel,
Dist. Raigad.
18. Prathamesh Sandip Thakur,
Age 17 Yrs, Indian Inhabitant
Through His Mother as Minor Legal
Representative Suchita Sandip Thakur,
Residing at Shivaji Nagar,
Post-Gavhan, Tal-Panvel,
Dist-Raigad.
19. Master Marmik Sandip Thakur,
Age-15 Yrs, Indian Inhabitant,
Through His Mother as Minor Legal
Representative Smt. Suchita Sandip Thakur,
Residing at Shivaji Nagar, Post-Gavhan,
Tal-Panvel, Dist-Raigad. ...Respondents
Mr.Prasad Dani, Senior Advocate, with Nishant Tripathi & Pranay
Vaidya, i/b B.M. Tripathi & Co, for the Petitioner.
Mr. Rohit Sakhadeo, for Respondent No.3-Cidco.
Mr. R.D. Soni, with Uma Sharma, i/b Dharam & Co, for Respondent
Nos. 4 to 10, 12, 13 & 15 to 19.
CORAM: N. J. JAMADAR, J.
JUDGMENT RESERVED ON : 4TH FEBRUARY 2025.
JUDGMENT PRONOUNCED ON: 17TH APRIL 2025
JUDGMENT:
1. Rule. Rule made returnable forthwith and with the consent of the
learned counsel for the parties, heard finally.
2. By this Petition under Article 227 of the Constitution of India, the
Petitioners-decree holders take exception to an order passed by the
executing Court on 19th March 2019 whereby the executing Court
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entertained the Application of Respondent Nos. 4 to 15 and directed that
the issue of resistance and executability of the decree passed in SCS
No.747 of 2007 be adjudicated.
3. Shorn of unnecessary details, the background facts leading to this
Petition can be stated in brief as under:
2.1 Mahadeo Alias Mahadu Changu Tandel was the holder of
agricultural land bearing Survey No. 55, Hissa No. 8 situated at village
Gavhan. The said land was acquired by Cidco-Respondent No.3, a New
Town Development Authority for the purpose of the development of
New Mumbai. An award was passed. Under the scheme, known as
12.5% scheme, the agriculturists whose lands were acquired were
entitled to allotment of a developed plot by Cidco.
2.2 Respondent Nos. 1 and 2-the judgment debtors claimed
themselves to be the successor interest of Mahadeo Tandel. Respondent
Nos. 1 and 2 along with their mother Namubai Ganpat Thakur, entered
into an Agreement to Sell with respect to their right, title and interest in
the developed plot, admeasuring 950 square meter, which was to be
allotted at Ulwe, Taluka Panvel, District Raigad, for a consideration of
Rs. 28,50,000/- in favour of the Petitioner. An Agreement of Assignment
dated 28th July 2007 came to be executed between the Petitioners and
Respondent Nos. 1 and 2. Part consideration was paid.
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2.3 Asserting that Respondent Nos. 1 and 2 committed default in
performance of their part of contract to sell the said plot, the Petitioner
instituted a Suit for specific performance of the contract, inter alia,
seeking an order against the Defendants to execute the Deed of Transfer
in favour of the Plaintiff.
2.4 The suit proceeded ex parte against Defendant Nos. 1 and 2.
Respondent No.3-Cidco contested the suit.
2.5 By judgment and order dated 3rd November 2016, the learned
Civil Judge, Senior Division, Panvel, was persuaded to decree the Suit
and direct the Defendant to perform the obligations under the contract
and execute Deed of Transfer in favour of the Plaintiff upon deposit of
the entire consideration.
2.6 The Petitioner filed a Petition for execution of the said decree,
namely, Special Darkhast No. 20 of 2017. A Court Commissioner was
appointed to execute the instrument in favour of the Petitioner. As there
was obstruction in the execution of the decree, the Court Commissioner
submitted a report to the Court.
2.7 On 6th October 2018, the Respondent Nos. 4 to 19 appeared
before the executing Court and filed an Application purportedly under
Section 47 of the Code of Civil Procedure 1908 ("the Code") and sought
the dismissal of the Execution Petition on the premise that the decree
was not executable. The substance of the resistance put forth by
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Respondent Nos. 4 to 19 was that the Respondent Nos. 1 and
2/Defendant Nos. 1 and 2 had falsely claimed that they were the
successor in interest of Mahadu Tandel. Respondent Nos. 1 and 2 were
not the legal heirs of late Mahadu Tandel. The Respondent Nos. 4 to 19
were the legal heirs of late Mahadu Tandel. Respondent Nos.1 and 2 had
fraudulently obtained a heirship certificate dated 2 nd September 1995 in
CMA No. 226 of 1995. Respondent Nos. 4 to 19 thus filed an Application
for cancellation of the said heirship certificate and by an order dated
dated 13th July 2018 passed in Civil Enquiry Application No. 511 of
2011, the said heirship certificate came to be revoked. Conversely, by an
order dated 29th January 2009 in CMA No.881 of 2008, heirship
certificate came to be granted to Respondent Nos. 4 to 19. Therefore,
the decree which has been put to execution is a nullity and obtained by
practicing fraud.
2.8 The Petitioner resisted the Application.
2.9 By the impugned order, the learned Civil Judge, Panvel, was
persuaded to entertain the resistance on behalf of Respondent Nos. 4 to
19 and direct that the issue of resistance and executability of the decree
be adjudicated. The learned Civil Judge was of the view that though the
Respondent Nos. 4 to 19, were not parties to the proceeding and thus
could not have invoked the provisions contained in Section 47 of the
Code, yet, the resistance put forth by Respondent Nos. 4 to 19 was
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required to be adjudicated under the provisions of Order XXI Rule 97 of
the Code.
2.10 Being aggrieved, the Petitioners-Decree Holders have invoked the
writ jurisdiction.
4. I have heard Mr. Prasad Dani, the learned Senior Advocate, for
the Petitioners and Mr. Rohit Sakhadeo, the learned Counsel for
Respondent No.3-Cidco and Mr. R.D. Soni, the learned Counsel for
Respondent Nos. 4 to 12, 13, 15 to 19. The learned Counsel took the
Court through the pleadings and material on record.
5. Mr. Dani, the learned Senior Advocate for the Petitioner,
submitted that though the learned Civil Judge, has explicitly recorded
that the provisions contained in Section 47 of the Code, under which the
Application was purportedly filed, had no application, yet, the learned
Civil Judge proceeded to pass the impugned order to decide the issues of
resistance and executability of the decree. Mr. Dani would urge that the
leaned Civil Judge was in error in holding that the alleged purported
resistance sought to be put forth by Respondent Nos. 4 to 19 can be
considered to be one under the provisions of Order XXI Rule 97 of the
Code. It was submitted that in the process, the learned Civil Judge lost
sight of the nature of the decree. What the judgment debtors are
required to do under the decree in question is to transfer the subject plot
to the Petitioners. It is not the case of the Respondent Nos. 4 to 19 that
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they have been put in possession of the subject plot and they offered the
resistance when they were sought to be dispossessed. Therefore, the
provisions contained in Order XXI Rule 97 are also inapplicable to the
facts of the case at hand.
6. In opposition to this, Mr Sakhadeo, the learned Counsel for
Respondent No.3-Cidco submitted that the decree is in teeth of the Land
Disposal Rules in accordance with which Cidco is required to transfer
the developed plots to the agriculturist whose lands have been acquired.
The execution of the decree has the propensity to adversely affect the
statutory functions of Cidco. There was no privity of contract between
Respondent No. 3 -Cidco and the Petitioners. Thus, the Trial Court could
not have directed the execution of the Transfer Deed by Cidco (R3).
Therefore, the Respondent No.3 supports the impugned order, urged Mr.
Sakhadeo.
7. Mr. Soni, the learned Counsel for Respondent Nos. 4 to 19,
resisted the submissions on behalf of the Petitioners. It was submitted
that the judgment debtors had no right, title and interest in the
developed plot which was to be allotted by way of compensation for the
acquisition of the land of late Mahadu Tandel. The award was passed in
the name of MahaduTandel and Joma Mahadeo Tandel. Respondent
Nos. 1 and 2-Defendant Nos.1 and 2 had no concern with Mahadu
Tandel. In such circumstances, Respondent Nos. 1 and 2-Defendant Nos.
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1 and 2 could not have agreed to transfer the plot to be allotted in lieu
of the acquisition of land.
8. Attention of the Court was invited to the award (Exhibit "C" to
the Affidavit in Reply) which indicates that the award was passed in
favour of Mahadu and Joma. Since a clear case of fraud and the decree
being nullity was made out, the learned Civil Judge was justified in
holding that the resistance of Defendant Nos. 4 to 19 was required to be
adjudicated under the provisions of Order XXI Rule 97 of the code. Mr.
Soni submitted that under the provisions of Order XXI Rule 97, any
person was entitled to offer reistance the execution of the decree.
Respondent Nos. 4 to 19 are claiming an independent right and thus the
issue of executability of the decree was required to be decided by the
executing Court only. To buttress this submission, Mr. Soni placed
reliance on the judgment of the Supreme Court in the case of Brahmdeo
Choudhary Vs Rishikesh Prasad Jaiswal & Anr.1
9. I have given anxious consideration to the rival submissions.
Evidently, Respondent Nos. 4 to 19 were not parties to the Suit in which
the decree came to be passed. Nor Respondent Nos. 4 to 19 are claiming
through the parties to the Suit. On the contrary, the Respondent Nos. 4
to 19 are asserting their independent right, title and interest in the suit
property.
1 1997 (3) SCC 694.
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10. In view of the aforesaid rather incontrovertible position, the
submission of Mr. Dani that Section 47 of the Code which mandates that
all question relating to the execution or satisfaction of the decree shall
be determined by the executing Court, was not attracted to the facts of
the case, appears sustainable.
11. The learned Civil Judge also recorded in clear terms that as
Defendant Nos. 4 to 19 were not parties to the Suit, there was no
occasion to resort to Section 47 of the Code. The learned Civil Judge
was, however, of the view that notwithstanding the incorrect
nomenclature of the Application, the Court was required to consider
resistance to the execution of the decree and, thus, the objection could
be considered to be one under the provisions of Order XXI Rule 97 of the
Code.
12. Whether the aforesaid approach of the learned Civil Judge is
justifiable?
13. Order XXI of the Code which regulates the procedure of the
execution of the decrees, contains a fasciculous of provisions and is
construed to be a Code in itself. Rule 97 to 106 of the Code contain the
provisions under the caption of "Resistance to delivery of possession to
decree holder or purchaser". Order XXI Rule 97 with which we are
primarily concerned reads as under:
"97. Resistance or obstruction to possession of immovable
property.-- (1) Where the holder of a decree for the
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possession of immovable property or the purchaser of any
such property sold in execution of a decree is resisted or
obstructed by any person in obtaining possession of the
property, he may make an application to the Court
complaining of such resistance or obstruction.
(2) Where any application is made under sub-rule (1), the
Court shall proceed to adjudicate upon the application in
accordance with the provisions herein contained."
14. The text of Rule 97, on its plain reading, indicates that where the
holders of a decree or purchaser of any property sold in execution of the
decree is resisted or obstructed by any person in obtaining possession of
property, he can complain of the resistance or obstruction and there-
upon the Court shall proceed to adjudicate such resistance or
obstruction. Rule 99, of Order XXI, on the other hand, enables any
person other than the judgment debtor, who claims to be dispossessed
by decree holder or by the purchaser of the property in execution of the
decree, to make an application to the Court complaining of such
dispossession. It is imperative to note that Rule 101 of Order XXI, inter
alia, provides that all questions including questions relating to right,
title and interest in the property arising between the parties to a
proceeding under Rule 97 or Rule 99, shall be determined by the Court
dealing with application, and not by a separate Suit.
15. A profitable reference, in this context, can be made to the
decision of the Supreme Court in the case of Bhanwar Lal Vs
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Satyanarain & Anr2 wherein the legal position as regards the resistance
to the execution under Order XXI Rule 97 was expounded as under:
"5. The procedure has been provided in Rules 98 to
103. We are not, at present, concerned with the
question relating to the procedure to be followed
and question to be determined under Order 21,
Rules 98 to 102. A reading of order 21, Rule 97 CPC
clearly envisages that "any person" even including
the judgment-debtor irrespective whether he claims
derivative title from the judgment-debtor or set up
his own right, title or interest dehors the judgment-
debtor and he resists execution of a decree, then the
court in addition to the power under Rule 35(3) has
been empowered to conduct an enquiry whether the
obstruction by that person in obtaining possession of
immovable property was legal or not. The decree-
holder gets a right under Rule 97 to make an
application against third parties to have his
obstruction removed and an enquiry thereon could
be done. Each occasion of obstruction or resistance
furnishes a cause of action to the decree-holder to
make an application for removal of the obstruction
or resistance by such person.
6. When the appellant had made the application
on 25-5- 1979 against Satyanarain, in law it must be
only the application made under Order 21, Rule
97(1) of CPC. The executing court, obviously, was in
error in directing to make a fresh application. It is
the duty of the executing court to consider the
2 1995 (1) SCC 6.
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averments in the petition and consider the scope of
the applicability of the relevant rule. On technical
ground the executing court dismissed the second
application on limitation and also the third
application, on the ground of res judicata which the
High Court has in the revisions now upheld. The
procedure is the handmaid of substantive justice but
in this case it has ruled the roost."
16. In the case of Brahmdeo Choudhary(Supra) the Supreme Court
after following the previous pronouncement in the case of Bhanwar Lal
(Supra) enunciated that the provisions of Order XXI lay down a
complete Code for resolving all disputes pertaining to execution of
decree for possession obtained by a decree-holder and whose attempts
at executing the said decree meet with rough weather. Once resistance is
offered by a purported stranger to the decree and which comes to be
noted by the Executing Court as well as by the decree-holder the remedy
available to the decree-holder against such an obstructionist is only
under Order XXI Rule 97 sub-rule (1) and he cannot bypass such
obstruction and insist on re- issuance of warrant for possession under
Order XXI Rule 35 with the help of police force, as that course would
amount to bypassing and circumventing the procedure laid down under
Order XXI Rule 97 in connection with removal of obstruction of
purported strangers to the decree. Once such an obstruction is on the
record of the Executing Court it is difficult to appreciate how the
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Executing Court can tell such obstructionist that he must first lose
possession and then only his remedy is to move an application under
Order XXI Rule 99 CPC and pray for restoration of possession.
17. The aforesaid position was re-emphasized by the Supreme Court
in the case of Ved Kumari (Dead Through Her Legal Representative) Dr
Vijay Agarwal Vs Municipal Corporation of Delhi Through Its
Commissioner.3
18. In the case of Sriram Housing Fiance & Investment India Limited
Vs Omesh Mishra Memorial Charitable Trust4 on which reliance was
placed on behalf of the Petitioners, the Appellant before the Supreme
Court claimed to be a bonafide purchaser of the property which was
subject matter of the decree of eviction and possession. In that context,
the Supreme Court enunciated the law as under:
"22. From a bare reading of the aforesaid provisions, it is
clear that Order XXI Rule 97 deals with the resistance or
obstruction to possession of immovable property by "any
person" obtaining possession of the property against the
decree holder. It empowers the "decree holder" to make an
application complaining about such resistance or obstruction.
On the other hand, Rule 99 of Order XXI deals with the right
of "any person" other than the judgment debtor who is
dispossessed by holder of a decree for possession of such
property or in case where such property is sold in furtherance
of execution of a decree. The said provision vests "any person"
3 2023 (13) SCC 651.
4 (2022) 15 SCC 176.
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with a right to make an application complaining about such
dispossession of immovable property in the manner prescribed
above. Rule 98 and Rule 100 deal with the power of the Court
to pass appropriate orders upon an application preferred
under Rule 97 and Rule 99 respectively.
23. Insofar as Rule 101 is concerned, it confers jurisdiction
on the Court as well as casts an obligation to determine the
questions relating to right, title or interest in the property, if
any, arising between parties on an application made by the
person concerned under Rule 97 or Rule 99 in the same
proceedings for adjudication and not in a separate suit. Lastly,
Rule 102 clarifies that Rule 98 and Rule 100 shall not apply in
a case where resistance or obstruction in execution of a decree
for the possession of immovable property is offered by
"transferee pendentelite" i.e., the person to whom the property
is transferred by the judgment debtor after institution of the
suit in which the decree sought to be executed was passed.
24. On conjoint reading of the aforesaid provisions, it can be
observed that under Rule 97, it is only the "decree holder"
who is entitled to make an application in case where he is
offered resistance or obstruction by "any person". In the
present case, as admitted by the appellant itself, it is a bona-
fide purchaser of the property and not the "decree holder". As
available from the material placed on record, it is the
respondent trust alongwith legal heirs of late N.D. Mishra who
are the decree holders and not the appellant. Therefore, it is
obvious that appellant cannot take shelter of Rule 97 as stated
above to raise objections against execution of decree passed in
favour of respondent. Further, Rule 99 pertains to making a
complaint to the Court against "dispossession" of the
immovable property by the person in "possession" of the
property by the holder of a decree or purchaser thereof.
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25. It is factually not in dispute that appellant purchased the
said property from Mr. Yogesh Mishra vide sale deed dated
12.04.2004 and has been in vacant and physical possession of
the property since then. Had it been the case that the
appellant was dispossessed by the respondent trust in
execution of decree dated 02.09.2003, the appellant would
have been well within the ambit of Rule 99 to make an
application seeking appropriate relief to be put back in
possession. On the contrary, the appellant in the instant case
was never dispossessed from the property in question and till
date, as contended and unrefuted, the possession of same rests
with the appellant. Considering the aforesaid, the appellant
cannot be said to be entitled to make an application under
Rule 99 raising objections in execution proceedings since he
has never been dispossessed as required under Rule 99.
26. Now, as stated above, applications under Rule 97 and
Rule 99 are subject to Rule 101 which provides for
determination of questions relating to disputes as to right, title
or interest in the property arising between the parties to the
proceedings or their representatives on an application made
under Rule 97 or Rule 99. Effectively, the said Rule does away
with the requirement of filing of fresh suit for adjudication of
disputes as mentioned above. Now, in the present case, Order
XXI Rule 101 has no applicability as the appellant is neither
entitled to make an application under Rule 97 nor Rule 99 for
the reasons stated above. Accordingly, we find no substance in
the argument raised by learned counsel for the appellant.
27. In such circumstances, the Executing Court had no
occasion to frame issues and give direction to parties to lead
evidence on objections raised by appellant. By doing so, the
Executing Court transgressed the scope of Order XXI Rule 97
and Rule 99. Therefore, in our considered view, the High Court
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has rightly set aside the order of Trial Court entertaining the
objections filed by appellant under Order XXI Rule 97 to Rule
102."
19. In the light of the aforesaid exposition of law, re-adverting to the
facts of the case, as noted above, the core controversy between the
parties is regarding the entitlement of Respondent Nos.1 and 2 to
succeed to the estate of late Mahadu Tandel. As is evident, initially, legal
heirship certificate was obtained by Respondent Nos. 1 and 2. However,
subsequently, in the year 2009, the said legal heirship came to be
canceled by an order dated 13th July 2018. In the meanwhile, in the year
2009, legal heirship certificate was granted in favour of Respondent Nos.
4 to 19. It is also necessary to note that the award refers to names of
Mahadu Tandel and Joma Tandel and, in fact, the possession receipt was
obtained from Joma Tandel. In the backdrop of the aforesaid nature of
the dispute the transaction between the Plaintiff and Defendant Nos. 1
and 2 deserves to be appreciated.
20. Upon perusal of the Agreement of Assignment dated 28 th July
2007 it becomes abundantly clear that Respondent Nos. 1 and 2
proposed to transfer a plot of land admeasuring 900 sq mtrs to be
allotted by Cidco to the assignors at Ulwe, Navi Mumbai, under the
Award. It is not the case that on date of execution of the said Agreement
for Assignment, the transfer by Cidco in favour of Defendant Nos. 1 and
2 was completed. It appears that a Letter of Intent was issued on 14 th
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July 2007. Incontrovertibly, the entitlement to the said plot hinged upon
the acquisition of the land for the New Town and as and by way of
compensation for the said acquisition. In this view of the matter, the
character of Respondent Nos. 1 and 2 as legal representatives of late
Mahadu Tandel and, consequently, the persons who were entitled to
succeed to the estate of late Mahadu Tandel was the core issue to be
determined. The revocation of heirship certificate granted in favour of
Respondent Nos. 1 and 2 and the grant of heirship certificate in favour
of Respondent Nos. 4 to 19 are thus required to be appreciated in the
aforesaid context.
21. The aforesaid being the nature of the dispute between the parties,
in my considered view, the decree for specific performance which
commanded Respondent Nos. 1 to 3 to execute the transfer Deed in
favour of the Plaintiffs, could be resisted by filing an Application before
the executing Court. The delivery of possession of the plot by Cidco to
the Plaintiff is essentially consequential to the execution of the Deed of
Transfer, i.e., a tripartite Agreement. Therefore, it cannot be urged that
since there was no question of dispossession of Respondent Nos. 4 to 19
or for that matter resistance was not offered to the delivery of possession
by Respondent Nos. 4 to 19, the resistance did not fall within the realm
of Order XXI Rule 97.
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22. Viewed through the aforesaid prism, the learned Civil Judge
committed no error in holding that the question of resistance to the
execution of the decree and its executability were required to be
adjudicated. Thus, there is no infirmity in the impugned order which
warrants interference in exercise of supervisory jurisdiction. Hence the
following order:
:ORDER:
(i) Petition stands dismissed.
(ii) Rule discharged.
(iii) No costs.
[N. J. JAMADAR, J.]
1. At this stage, the learned Counsel for the petitioner seeks
continuation of the status quo order passed by this Court on 8th
November 2019.
2. For the reasons indicated in this judgment and order, the prayer
for continuation of the status quo does not deserve countenance. Hence,
the oral application for continuation of the status quo stands rejected.
[N. J. JAMADAR, J.]
