Bombay High Court
Kamal Vishwanath Jadhav vs Challani Ginning And Pressing Factory ... on 17 November, 2025
2025:BHC-AUG:31449
SA 394/25
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 394 OF 2025
WITH
CIVIL APPLICATION NO. 11376 OF 2025
Kamal W/o Vishwanath Jadhav,
Aged : 70 yrs., Occu. Business,
R/o. 11, Shriniketan Colony, Jalna
Road, Chhatrapati Sambhajinagar. ...APPELLANT
(ORIGINAL OBJECTOR)
VERSUS
Challani Ginning and Pressing Factory,
A registered Partnership Firm, having
it's registered office at 207,
Atul Market, Laxmi Chawadi,
Chhatrapati Sambhajinagar
Through its Partner ...RESPONDENT
(ORI. DECREE HOLDER)
...
Mr. N.B. Khandare, Sr. Advocate I/b. Prashant Nikam, Advocate for
appellant.
Mr. P.F. Patni, Advocate for respondent.
...
CORAM : ARUN R. PEDNEKER, J.
RESERVED ON : 12.11.2025.
PRONOUNCED ON : 17.11.2025.
JUDGMENT :
-
1) By the present second appeal, the appellant/original objector
challenges the judgment and decree dated 11.09.2025 passed by the first
appellate Court in R.C.A. No. 116/2025, confirming the judgment and order
dated 9.5.2025 passed by the Executing Court in Special Darkhast No.
32/2017. The appellant/objection petitioner's objection petition at Exh. 210
and an interim application for framing issues at Exh. 233 in Special
Darkhast No. 32/2017 are dismissed by the Executing Court vide common
judgment and order dated 9.5.2025.
2) The learned counsel for the appellant submits that following
substantial questions of law arise in the present second appeal.
(1) Whether both the Courts below failed to appreciate the true
intent, import and scope of Rule 97 of Order 21 of CPC, while rejecting
Objection Petition/Application of the Appellant :
i) Holding that it is filed in collusion with JD-1 Narendra to
frustrate and defeat the decree being frivolous, not bona fide and
with intent to prolong the execution proceedings.
ii) Without going into the issue of right, title and interest of
the Appellant more particularly when the Appellant claims
proprietary right and share in the property in her possession.
(2) Whether the provisions of Rule 97-101 of Order 21 CPC permit
the Executing Court to decide Objection in a summary manner without
adjudicating right, title and interest in the property of the Appellant by
denying opportunity to lead evidence to prove right title and interest,
which only to prove by adducing evidence.
(3) Indisputably, the Appellant is in possession of the property in
question and her right to remain in possession is independent of
decree hence cannot be dispossessed until her right title and interest is
adjudicated upon by following the due process of law.
(4) As to whether finding recorded by the executing court only on
the basis of oral arguments without allowing evidence and without
framing issue that property in question is self-acquired property of JD
is directly militate to the basic principle of Evidence Act, more
particularly provisions of Chapter VII of the Indian Evidence Act.
3) Before adverting the above raised substantial questions of law, brief
facts leading to the institution of the present appeal can be summarized as
under :-
The plaintiff filed suit for specific performance of an agreement of sale
of plot No. 11, CTS No. 13159/17 situated at Shriniketan colony,
Aurangabad in Special Civil Suit No. 201/2013. In the said suit, specific
performance was not granted, however, direction was issued to refund the
earnest money of Rs. 1,45,00,000/- (Rupees one crore and forty five lakhs)
along with 8% interest. First appeal against the judgment of trial Court was
dismissed. As the earnest amount was not refunded with interest, the
Decree Holder (DH) filed execution petition on 8.8.2017 bearing Special
Darkhast No. 32/2017. In the execution proceeding plot No. 11 was
attached on 21.9.2017 by the executing Court.
4) During the pendency of the execution petition, after attachment, the
Judgment Debtor (JD) sold the said plot No. 11 by a registered sale deed to
one Vienna Multiventure. Meanwhile, the executing court issued
proclamation for public auction of the said plot No. 11. Vienna Multiventure
filed objection petition in the said execution proceeding on the ground that
they are bonafide purchasers of the said plot No. 11. The objection of
Vienna Multiventure was rejected by the trial Court, first appellant court and
it was confirmed up to the Supreme Court. Vienna Multiventure has further
mortgaged the said property i.e. plot No. 11 with HDFC Bank and has
obtained loan of Rs.3,00,00,000/- (Rupees three crores). After rejection of
objection of Vienna Multiventure, the property attached was put to auction.
The auction was then challenged by JD No. 1 on 28.7.2022 and said
objection application was allowed by the executing court and the auction
was set aside. On 3.5.2023 after fixing the base price of Rs. 2,85,34,000/-
fresh sale proclamation was ordered to be issued. Sale proclamation was
affixed at the gate of said property by beat of drums on 3.7.2023 and
accordingly panchanama was also prepared. On 4.1.2025 the auction sale
was confirmed by the executing Court. This confirmation of sale was
objected by JD by filing Writ Petition Nos. 1552/2025 and 1577/2025, which
were dismissed by this Court by imposing cost of RS. 75,000/-. Thereafter,
on 20.2.2025 present appellant filed objection petition and objected to the
possession warrant and for setting aside the auction sale. The said objection
petition filed by the appellant was rejected by the executing court by
imposing compensatory cost of Rs.10,000/-. On 8.7.2025 the executing
court issued warrant of possession which was returned as the house was
locked. Thereafter, on 2.7.2025 the appellant had filed appeal before the
first appellate court bearing No. RCA No. 116/2025. On 11.9.2025 the said
appeal was dismissed by the first appellate court. However, stay to the
warrant was continued for some time. Thereafter, the appellant filed the
present second appeal.
5) Mr. N.B. Khandare, learned Senior Counsel for the appellant submits
that petitioner is an independent third party and she does not derive her
title of the auctioned property i.e. plot No. 11 from the JD and the auctioned
property is also not the decreetal property. The learned Senior counsel
submits that money decree is sought to be executed against the joint family
property of the appellant and JD. The learned Senior Counsel submits that
JD is the son of the appellant and the property put in auction i.e. plot No.
11 is joint family property and Courts below ought not to have brushed
aside the objection raised under Order 21 Rule 97 of Civil Procedure Code
(CPC), as frivolous. The appellant being the third party and the property put
in auction is not the decreetal property, the courts below ought to have
given opportunity to the appellant to lead the evidence to demonstrate the
right of the appellant in the auctioned property. He also submits that the
courts below having brushed aside the objection raised, without framing
issues and permitting the appellant to lead evidence and having rendered a
finding that the suit property is owned by JD No. 1, great prejudice is
caused to the appellant as the finding would operates as res-judicata in any
suit that may be filed to demonstrate her right qua the auctioned property.
He submits that a judgment passed under Order 21 Rule 97 of CPC is a
decree unless the objection is rejected on the ground of jurisdiction. He
submits that in the facts of the case, the above substantial questions of law
arise for consideration in the present second appeal. During the course of
arguments, the learned counsel for the appellant submits that if the
opportunity to lead the evidence is given to the appellant, the appellant
would conclude the proceedings in the objection application within a period
of six months.
6) In support of above submissions, the learned counsel for the
appellant has placed reliance on the following judgments :-
i. Parsanbai Dhanraj Jain and Ors. Vs. Sunanda Madhukar
Jadhav, 2017 (6) AlL MR 877.
ii. Maya Devi Vs. Lalta Prasad, 2015 ALL SCR 487
iii. Shreenath and Anr. Vs. Rajesh and Ors., AIR 1998 SC 1827
iv. Kuber Hou. Society Investment & Finance Pvt. Ltd. Vs. TCL
Finance Ltd. & Ors., 2013 (6) ALL MR 342
v. Jogindarsingh Ravail Singh Vs. Sitavanti Avtarsingh Bhasin,
1982 ALL MR Online 274
vi. Sardar Hasnbhai Attar Vs. Usman Papamiya Attar Shaikh
and Ors., 2008 (2) ALL MR 186
vii. Brahmdeo Choudhary Vs. Rishikesh Prasad Jaiswal, 1997
(1) Mh.L.J. (SC) 817
viii. Umadevi Nambiar Vs. Thamarsseri Roman Catholic Dioces,
2022 (6) Mh.L.J. 1
ix. Shripati Ganpati Jadhav and ors. Vs. Chandrakant Ganpati
Jadhav and Ors., 2010 0 Supreme (Bom) 1635
x. Rajendra Laxminarayan Jaiswal and ors. Vs. Nandranibai
Harinarayan Jaiswal and ors., decided by this Court in Writ
Petition No. 11521/2021 with WP No. 11529/2021 decided on
27.7.2022
xi. Udyavara R. Acharya Vs. Mr. Jugal Kishor Jagannath Sharda
Zenith Co-operative Housing Society Ltd., 2020 0 Supreme (Bom)
xii. Nooruddin Vs. K.L. Anand, 1994 0 Supreme (SC) 1230
xiii. Ram chandra Verma Vs. Shri Jagat Singh Singhi & Ors.,
1996 (2) SUPREME 429
xiv. Haribhai @ Harilal Maujibhai Patel & Ors. Vs. Neera
Madanlal Lodha & Ors., decided by this Court in SA No. 877/2018
with Civil Application No. 13907/2018 decided on 7.2.2023
xv. Canara Bank Vs. Gurmukh Singh & Ors., AIR 2000 DELHI
xvi. Punjab Financial Corporation, Chandigarh Vs. M/s. Garg
Rice and General Mills Samana and Ors., AIR 1984 PUNJAB AND
HARYANA 319
xvii. Tanzeem-e-sufia Vs. Bibi Haliman and Ors., 2002 (6)
Supreme 109
xviii. Babulal Vs. Raj Kumar & Ors., 1996 (2) Supreme 601
xix. Sardar Hasanbhai Attar Vs. Usman Papamiya Attar Shaikh
& ors., 2007 Supreme (Bom) 1416
xx. Bangalore Development Authority Vs. N. Nanjappa, AIR
2022 SUPREME COURT 81
xxi. Jini Dhanrajgir and Anr. Vs. Shibu Mathew and Anr., (2023)
20 Supreme Court Cases 76.
7) Having considered the factual background of the case and the
submissions made by the learned counsel for the appellant, the substantial
question of law, that arises for consideration in the instant case is as
under :-
"Whether the executing court erred in law in not framing the
issues and permitting the appellant/objection petitioner in
leading evidence and demonstrating her case that the
auctioned property is a joint family property and the same is
purchased from the funds of the nucleus of joint family
property and thus the auction sale of plot No. 11 is not
binding upon her to the extent of 1/3rd of her share in plot
No. 11 ?"
8) The present second appeal arises out of the execution proceeding. I
have proceeded to decide the substantial questions of law raised by the
appellant in this appeal. I have heard both the parties extensively on the
substantial question of law as noted above in para 7. Keeping the matter
admitted by framing of above substantial questions of law would cause
prejudice to the respondent/auction purchaser and as such, I have
proceeded to determine the substantial question of law.
9) Responding to the above question of law, Mr. P.F. Patni, learned
counsel appearing for respondent/DH/auction purchaser submits that DH
has purchased the property in auction with the permission of the Court and
has deposited entire auction amount in the Court and the appellant herein
had failed to raise objection from the year 2017 when the property was put
under attachment. Thereafter sale was conducted through auction which
was set aside and again another sale was conducted by auction which was
confirmed up to Supreme Court. The objections raised at the stage of
delivery of possession, claiming 1/3 right in the suit property is a frivolous
one and cannot be adjudicated and therefore, the courts below have
summarily dismissed the objection application. The objection is raised only
to delay the handing over the possession of plot No. 11 to the auction
purchaser.
10) The learned counsel for the respondent submits that the objection
application filed by appellant would indicate that she was also the owner of
Plot No. 10 which she has sold in her individual capacity without the consent
of other family members, although she has stated in the application that it
is with consent of her sons. But the consent is not mentioned in the sale
deed. Younger brother of JD No. 1 was also the owner of the plot No. 49 in
the same vicinity and he had also entered into agreement to sale against
which specific performance was granted by the Court and said plot was also
sold in execution of the decree and no objection was raised by any of the
parties/family members of the objection petitioner that plot No. 49 was
jointly owned by the family.
11) It is also submitted that the sale deed of plot No. 11 in favour of JD
No. 1 would indicate that JD has purchased the property himself and at the
relevant time, he was of 27 years of age and a businessman as can be seen
from the recitals of the sale deed. The sale deed does not mention that
consideration is from joint family property or that the account from which
the amount is paid towards sale consideration is from joint family account.
He further submits that objection petition is berift of any document in
support of claim of the appellant. Her objection is only accompanied with
the execution warrant filed for the purpose of claiming cause of auction. He
submits that there is no document filed along with the objection application
whereby atleast prima facie view can be taken that the appellant has right
over the property of JD No. 1. He also submits that JD No. 1 in the suit filed
for specific performance had not taken any defence that the suit property
i.e. plot No. 11 is joint family property nor did the present appellant or
younger brother of the JD No. 1 had filed any intervention application in the
suit claiming that the suit property is a joint family property. He submits
that the substantial questions of law raised in the present appeal do not
arise and the Courts below have rightly dismissed the objection of the
appellant.
12) The learned counsel for the auction purchaser has taken me through
para No. 5 of the objection petition and submits that appellant has admitted
that she has alienated plot No. 10, however, she has stated that it was with
the express consent of JD and other son, but the sale deed produced did not
indicate that there was consent by the JD as well as other son. At para 6 of
the objection, she has stated that JD No. 1 and other son are permanently
residing at Mumbai along with family in the year 2004 and objection
petitioner resides in the suit property. He also submits that primary relief
claimed is the objection petition is to set aside the auction sale. He points
out that the appellant court has observed that entire sale consideration for
plot No. 11 is paid by JD No. 1 and thus JD No. 1 is the sole owner of the
property put in execution. The learned counsel has relied upon the
judgment in the case of Periyamma (Dead) through Lrs. and Ors. Vs. V
Rajmani and Anr., reported in 2025 SCC OnLine SC 507 and submits that
the executing court can decide whether the the resistor or obstructor is a
person bound by the decree and he refused to vacate the property. That
question is also squarely falls within the adjudicatory process contemplated
in order 21, Rule 97(2) of CPC. The adjudication mentioned therein need
not necessarily involve a detailed enquiry or collection of evidence. Court
can make the adjudication on admitted facts or even on the averments
made by the resistor. However, the court can direct the parties to adduce
evidence for such determination, if the court deems it necessary. He
submits that Courts below have rightly come to the conclusion relying upon
the judgment of Periyamma cited supra that the objection petition is not
tenable and liable to be dismissed with compensatory cost and that the
Courts below have rightly come to the conclusion that the objection petition
is not tenable and framing issues for adjudication of the objection petition is
not necessary.
13) The learned counsel for respondent has also relied upon para No. 46
of the judgment in the case of Periyammal (Dead) through Lrs. And Ors. Vs.
V Rajamani and Anr. (supra) and submits that technical objections to any
application filed by the aggrieved party whether he is the decree holder or
any other person in possession of the immovable property under execution,
the executing court is vested with the power to deal with all questions
arising in the matter irrespective of whether the Court otherwise has
jurisdiction to entertain a dispute of the nature. It is also observed that any
person claiming title to the property in his possession obstructs the attempt
by the decree-holder to dispossess him from the said property the executing
Court is competent to consider all questions raised by the persons offering
obstruction against execution of the decree and pass appropriate order.
14) The learned counsel for the respondent relied upon the judgment in
the case of Kadiyala Rama Rao Vs. Gutala Kahna Rao (Dead) by Lrs. And
ors., reported in (2000) 3 SCC 87 and submits that the provisions of Order
21 Rule 90, categorically envisage that material irregularity and fraud alone
would confer jurisdiction on the executing court to set aside the sale. The
question of saleable interest does not come within the ambit of Order 21
Rule 90 and as such the judgment-debtor had no locus standing to apply to
the court for setting aside the sale. It is only in the case of material
irregularity or fraud statute recognises such a locus standi only and not
otherwise. Apart therefrom, saleable interest can only be challenged by the
purchaser and not by the judgment-debtor since the purchaser's right would
otherwise be clouded therewith by reason of there being no saleable
interest in the property so far as the judgment-debtor is concerned. The
learned counsel submits that in the instant case the objector has fairly
submitted before this Court that they are not seeking quashing and setting
aside the sale on the ground of fraud or material irregularities and as such,
further prayer made in the application to set aside the sale cannot be
granted unless there is fraud or material irregularity is conducting sale. He
submits that the objection to sale ought to have been taken at earlier point
of time and not doing so, would amount to intentional relinquishment of a
known right.
15) The learned counsel for the respondent has also placed reliance on
the judgment of this Court in the case of Dhanaraji Baburam Yadav and Anr.
Vs. Ramakant K. Dhanawade and Ors. reported in 2003 (2) Mh.L.J. 58 to
contend that the objection has to be taken at earliest point of time and the
executing court is expected to be on guard and is expected to wipe out the
flimsy, false and vaxatious pleas raised by obstructionist.
16) The learned counsel for the respondent has also placed reliance on
the case of Kailashchandra Kedarmalji @ Kedarnath Agrawal Vs. Kocha
Veedu Varghese Joseph and Anr, reported in 1019 (1) Mh.L.J. 662 and
submits that the right accrued to the decree holder cannot be scuttled or
obstructed by anybody who is stranger to the decree. Of course, a limited
right to protect possession of the suit property has also been given under
Order 21, Rule 97 of CPC to any person who claims to be in possession and
till such right is decided. In order to assert such a right the obstructor is
required to demonstrate his prima facie case in the matter. He is required to
place before the executing court some material on the basis of which the
executing court could record its satisfaction that a dispute as contemplated
under Order 21, Rule 97 CPC has been raised and such dispute would
require an adjudication as mandated by Rule 101.
CONSIDERATION
17) In order to decide the above substantial question of law, the relevant
provisions of Order 21 of the CPC are noted below for ready reference.
"97. Resistance or obstruction to possession of immovable property:-
(1) Where the holder of a decree for the 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 the upon the application in
accordance with the provisions herein contained."
Order XXI, Rule 98 reads as follows:
"98. Orders after adjudication.
(1) Upon the determination of the questions referred to in rule
101, the Court shall, in accordance with such determination and
subject to the provisions of sub-rule (2),-
(a) make an order allowing the application and directing that
the applicant be put into the possession of the property or
dismissing the application; or
(b) pass such other order as, in the circumstances of the
case, it may deem fit.
(2) Where, upon such determination, the Court is satisfied that
the resistance or obstruction was occasioned without any just
cause by the judgment-debtor or by some other person at his
instigation or on his behalf, or by any transferee, where such
transfer was made during the pendency of the suit or execution
proceeding, it shall direct that the applicant be put into
possession of the property, and where the applicant is still
resisted or obstructed in obtaining possession, the Court may
also, at the instance of the applicant, order the judgment-debtor,
or any person acting at his instigation or on his behalf, to be
detained in the civil prison for a term which may extend to thirty
days."
Order XXI, Rule 99 reads as follows:
"99. Dispossession by decree-holder or purchaser :-
(1) Where any person other than the judgment-debtor is
dispossessed of immovable property by the holder of a
decree for the possession of such property or, where such
property has been sold in execution of a decree, by the
purchaser thereof, he may make an application to the Court
complaining of such dispossession.
(2) Where any such application is made, the Court shall
proceed to adjudicate upon the application in accordance
with the provisions herein contained."
Order XXI, Rule 100 reads as follows:
"100. Order to be passed upon application complaining of
dispossession.
Upon the determination of the questions referred to in
rule 101, the Court shall, in accordance with such
determination,-
(a) make an order allowing the application and
directing that the applicant be put into the possession of the
property or dismissing the application; or
(b) pass such other order as, in the circumstances of
the case, it may deem fit."
Order XXI, Rule 101 reads as follows:
"101. Question to be determined:-
All questions (including questions relating to right,
title or interest in the property) arising between the parties
to a proceeding on an application under rule 97 or rule 99 or
their representatives, and relevant to the adjudication of the
application, shall be determined by the Court dealing with
the application and not by a separate suit and for this
purpose, the Court shall, notwithstanding anything to the
contrary contained in any other law for the time being in
force, be deemed to have jurisdiction to decide such
questions."
Order XXI, Rule 103 reads as follows:
"103. Orders to be treated as decrees.
Where any application has been adjudicated upon
under rule 98 or rule 100 the other made thereon shall have
the same force and be subject to the same conditions as to
an appeal or otherwise as if it were a decree."
Relevant judgments of the Supreme Court dealing with the above
provisions relating to obstruction of the execution of decree are noted
below.
18) In the case of Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal
reported in (1997) 3 SCC 694, it is observed by the Hon'ble Supreme Court
that conjoint reading of Order 21, Rule 97, 98, 99 and 101 lays 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 is meet with objection.
19) The Supreme Court in the case of Brahmdeo Chaudhary cited supra
has observed as under :-
"On the contrary the statutory scheme envisaged by Order
21 Rule 97 CPC as discussed earlier clearly guards against
such a pitfall and provides a statutory remedy both to the
decree-holder as well as to the obstructionist to have their
respective say in the matter and to get proper adjudication
before the executing court and it is that adjudication which
subject to the hierarchy of appeals would remain binding
between the parties to such proceedings and separate suit
would be barred with a view to seeing that multiplicity of
proceedings and parallel proceedings are avoided and the
gamut laid down by Order 21 Rules 97 to 103 would remain
a complete code and the sole remedy for the parties
concerned to have their grievance once and for all finally
resolved in execution proceedings themselves."
(emphasis supplied)"
20) In Silverline Forum Pvt. Ltd. Vs. Rajiv Trust reported in (1998) 3 SCC
723, the Hon'ble Supreme Court has observed that a third party to the
decree including the transferee pendente lite can offer resistance or
obstruction and his right has to be adjudicated under Order 21, Rule 97 of
CPC. In Silverline Forum cited supra at para No. 9 the Hon'ble Supreme
Court has observed that resistance or obstruction made by a third party to
the decree of execution has to be decided by the executing Court and it is
incumbent upon the executing Court under Order 21 Rule 97 of the CPC to
adjudicate upon such complaint as per the procedure laid down. The Hon'ble
Supreme Court has observed that the executing Court can decide whether
resister or obstructor is a person bound by the decree and he refuses to
vacate the property and that question also squarely falls within the
adjudicatory process contemplated in Order 21 Rule 97(2) of CPC. The
adjudication mentioned therein need not necessarily involve a detailed
enquiry or collection of evidence. The Court can make the adjudication on
admitted facts or even on the averments made by the resister.
21) In the case of Sameer Singh Vs. Abdul Rab reported in (2015) 1 SCC
379, the Hon'ble Supreme Court has held that the executing court had the
authority to adjudicate all questions pertaining to right, title or interest in
the property arising between the parties. It also includes a claim of a
stranger who apprehends dispossession or has already been dispossessed
from the immovable property. The self-contained Code enjoins the
executing court to adjudicate the lis and the purpose of the conferment of
the power is to avoid multiplicity of the proceedings.
22) In the case of Nooruddin Vs. K.L. Anand reported in (1995) 1 SCC
242, the Honble Supreme Court has observed that it has to be remembered
that the preceding Civil Procedure Code Amendment Act, 1976, right of suit
under Order 21 Rule 103 or 1908 Code was available which has been now
taken away. By necessary implication, the legislature relegated the parties
to an adjudication of right, title or interest in the immovable property under
execution and finality has been accorded to it. Thus, the scheme of the
Code appears to be to put an end to the protraction of the execution and to
shorten the litigation between the parties or persons claiming right, title and
interest in the immovable property in execution.
23) In the case of Ashan Devi and Anr. Vs. Phulwasi Devi and Ors.
reported in (2003) 12 SCC 219 at para No. 16 the Hon'ble Supreme Court
has observed as under :-
"16. It is necessary at this stage to take into account the
objects of drastic amendments introduced to the Code of
Civil Procedure by Act 104 of 1976. This Court in the case of
Shreenath [MANU/SC/0286/1998 : (1998) 4 SCC 543] has
compared the unamended provisions of the Code in Order 21
and the provisions introduced after amendment. It is noticed
that earlier under the Code, the third party "dispossessed" in
the execution of the decree was required to institute an
independent suit for adjudication of its right and claims. In
order to shorten the litigations concerning same properties
between same and third parties, claims of third parties to
the property in execution are now required to be determined
by the executing court itself in accordance with provisions
under Order 21 Rule 101 with right of appeal to the higher
court against such adjudication treating it to be a "decree"
under Order 21 Rule 103 of the Code. On the amendments
introduced to the Code by the Amendment Act of 1976, this
Court observed thus:
"3. In interpreting any procedural law, where more
than one interpretation is possible, the one which
curtails the procedure without eluding justice is to be
adopted. The procedural law is always subservient to
and is in aid of justice. Any interpretation which eludes
or frustrates the recipient of justice is not to be
followed."
24) In the case of Tanzeem-E-Sufia reported in (2002) 7 SCC 50, the
Supreme Court has observed that the application of the decree holder
required adjudication under Order 21 Rule 97 of the Code and the
application of the third party also necessitated adjudication of its rights
under Order 21 Rule 97 of the Code irrespective of the fact that for part of
the property, the third party had filed an independent suit for declaration of
its title to the suit property.
25) Thus, third party who was entitled to file independent suit and seek
injunction against his dispossession is now mandated to file objection under
Order 21 Rule 97 of CPC and such application filed by the third party who
claims right independently to the JD and claims possession of her own right
is required to be adjudicated as a suit and in view of the aforementioned
judgments of the Hon'ble Supreme Court findings rendered in the
application under Order 21 Rule 97 would bar fresh suit by the principle of
res-judicata and the order passed under Order 21 Rule 97 of CPC would be
a decree subject to further provisions of appeal.
26) Having noted the law on the subject of obstruction to the execution of
decree, now I advert to the facts of the instant case. The case put up by the
objection petitioner/appellant in the objection petition is that the JD No. 1 is
the son of the objection petitioner. Husband of objection petitioner has
expired on 26.4.1993 leaving behind the objection petitioner, JD No. 1 and
one other son namely Yogesh Jadhav. During the lifetime, the husband of
the objection petitioner had started first company of cement product and
that at the relevant point of time, the husband of the objection petitioner
was having monopoly in the cement products and accordingly he had
earned lot of wealth out of the said business and had acquired couple of
properties. After demise of the husband, the objection petitioner alone
looked after cement product business left by the deceased. The objection
petitioner and JD No. 1 started various subsidiary companies wherein the
objection petitioner and JD No. 1 are directors. It is stated that JD No. 1
had no any independent source of income at the time of purchase of
property i.e. plot No. 11 having CTS No. 13159/17 (auction property). The
family was surviving on the amounts left behind by the husband of the
objection petitioner and the auction property was purchased out of the
income of the husband of the objection petitioner and also out of the funds
of the business looked after by the objection petitioner and thus, the
auction property is not the exclusive property of JD No. 1 and the same is
joint family property wherein the objection petitioner is having undivided
1/3rd share. It is stated that the decree so passed and the sale so
confirmed in favour of DH is not binding on the share of objection petitioner.
The objection petitioner has also given explanation of sale of one property
by herself i.e. plot No. 10 being sold with the express consent of other
owners.
27) The executing court has not framed the issues/points and permitted
the objector to lead evidence and to adjudicate the right, title and interest
of the objector in the property/plot No.11 attached and sold in auction. It is
to be noted that the suit filed for specific performance of the contract of sale
qua the same property was not granted and the earnest amount was
directed to be refunded. However, the amount was not refunded back and
as such, the execution proceedings were filed and the plot No. 11 was
attached. Although belatedly the present appellant has filed objection
petitioner under Order 21 Rule 97, claiming 1/3rd share in the auctioned
property, she is undisputedly the mother of JD No. 1 and she claims that the
suit property is purchased through the corpus of the joint family and that
she has 1/3rd share in the property. She does not dispute or challenge the
auction sale to the extent of share of other members of joint family,
although one of the prayer indicates that she has challenged the sale. Her
primary prayer is that she has 1/3rd share in the property and she cannot
be dispossessed from the auctioned property. She has also filed
independent suit for partition just prior to filing the objection petition and
the same is pending for adjudication. In the above noted facts, the question
arises whether the courts ought to have framed the issues raised for
determination and permit the appellant to prove her case by leading
evidence.
28) It is undisputed that the parties to the suit are Hindus and under
Hindu Law, the family is presumed to be joint. However, there is no
presumption of a property being joint family property only on account
existence of a joint Hindu family. On this aspect the Hon'ble Supreme Court
in the case of Angadi Chandranna Vs. Shankar and Ors, reported in
MANU/SC/0528/2025, at para Nos. 13 and 15 has observed as under :-
"13. Further, it is a settled principle of law that there is no
presumption of a property being joint family property only
on account of existence of a joint Hindu family. The one who
asserts has to prove that the property is a joint family
property. If, however, the person so asserting proves that
there was nucleus with which the joint family property could
be acquired, then there would be presumption of the
property being joint and the onus would shift on the person
who claims it to be self-acquired property to prove that he
purchased the property with his own funds and not out of
joint family nucleus that was available. That apart, while
considering the term 'nucleus' it should always be borne in
mind that such nucleus has to be established as a matter of
fact and the existence of such nucleus cannot normally be
presumed or assumed on probabilities. This Court in R.
Deivanai Ammal (Died) Vs. G. Meenakshi Ammal 12, dealt
with the concept of Hindu Law, ancestral property and the
nucleus existing therein. The relevant paragraphs are
extracted below for ready reference:
"13. First let us consider the nature of the suit
properties, namely, self-acquired properties of late
Ganapathy Moopanar or ancestral properties and
whether any nucleus was available to purchase the
properties. Under the Hindu Law it is only when a
person alleging that the property is ancestral property
proves that there was a nucleus by means of which
other property may have been acquired, that the
burden is shifted on the party alleging self-acquisitions
to prove that the property was acquired without any aid
from the family estate. In other words the mere
existence of a nucleus however small or insignificant is
not enough. It should be shown to be of such a
character as could reasonably be expected to lead to
the acquisition of the property alleged to be part of the
joint family property. Where the doctrine of blending is
invoked against a person having income at his disposal
and acquiring property, the reasonable presumption to
make is that he had the income at his absolute disposal
unless there is evidence to the contrary. If a coparcener
desires to establish that a property in the name of a
female member of the family or in the name of the
manager himself has to be accepted and treated as
property acquired from the joint family nucleus, it is
absolutely essential that such a coparcener should not
only barely plead the same, but also establish the
existence of such a joint family fund or nucleus. Even if
the joint family nucleus is so established, the
prescription that the accretions made by the manager
or the purchases made by him should be deemed to be
from and out of such a nucleus does not arise, if there
is no proof that such nucleus of the joint family is not
an income-yielding apparatus. The proof required is
very strict and the burden is on the person who sets up
a case that the property in the name of a female
member of the family or in the name of the manager or
any other coparcener is to be treated as joint family
property. There should be proof of the availability of
such surplus income or joint family nucleus on the date
of such acquisitions or purchases. The same is the
principle even in the cases where moneys were
advanced on mortgages over immoveable properties.
The onus is not on the acquirer to prove that the
property standing in his name was purchased from joint
family funds. That may be so, in the case of a manager
of a joint family, but not so in the case of all
coparceners. For a greater reason it is not so in the
case of female members.
14. ......
15. It is a well-established principle of law that where a
party claims that any particular item of property is joint
family property, the burden of proving that it is so rests on
the party asserting it. Where it is established or admitted
that the family possessed some joint property which from its
nature and relative value may have formed the nucleus from
which the property in question may have been acquired, the
presumption arises that it was joint property and the burden
shifts to the party alleging self-acquisition to establish
affirmatively that the property was acquired without the aid
of the joint family. But no such presumption would arise if
the nucleus is such that with its help the property claimed to
be joint could not have been acquired. In order to give rise
to the presumption, the nucleus should be such that with its
help the property claimed to be joint could have been
acquired. A family house in the occupation of the members
and yielding no income could not be nucleus out of which
acquisitions could be made even though it might be of
considerable value."
The Supreme Court has held that it is well settled principle of law that the
party who claims any property is a joint family property, the burden of
proving that it is so rests on the party asserting it. It is well settled principle
of law that there is no presumption of property being joint family property
only on account of existence of joint Hindu family.
29) Similarly in the case of Kannammal v. Ramathilakkammal reported in
AIR 1927 Mad. 38, the Hon'ble Madras High Court has observed as under :-
"While there is a presumption that a Hindu family is joint
until the contrary is proved, there is no presumption that a
Hindu family is possessed of property. The party alleging
that the property held by an individual member of a joint
family is family property must show that the family was
possessed of some property with the aid of which the
property in question could have been acquired. If this is
shown, and only then, the onus shifts to the party alleging
self-acquisition to affirmatively make out that the property
was acquired without any aid from the family estate.
30) However, the Prevy Council has observed that the circumstances may
readily cause the onus to be discharged. In the case of Annamalai Chetti v.
Subarmaniam Chetti reported in AIR 1929 P.C. 1, the Hon'ble Prevy Council
has observed thus :-
"the burden of proving in an action for partition of joint
family property that any particular item of property is join,
primarily rests upon the plaintiff. The circumstances may
readily cause the onus to be discharged.
31) At the relevant time, JD No. 1 was of 27 years of age and was a
businessman, who after demise of his father was in the expanded family
business and had purchased the auctioned property. The sale transaction
indicates that one cheque of Rs.1,00,000/- (Rupees one lakh) was issued
from his personal account. As regards balance amount of Rs. 18,00,000/-
(Rupees eighteen lakh) it is not known as to from where such amount is
paid. So also the amount of Rs.1,00,000/- paid whether such amount was
from the funds of joint family account or was personally earned amount or
from the business of his father inherited by family, is to be decided by
considering evidence and the same will have to be established. The
auctioned property put in execution is not the decreetal property and after
the possession warrant is issued against her, the appellant has raised
resistance to the decree/dispossession claiming her independent share in
the property. She does not claim her right through JD No. 1. Before
amendment of Order 21 Rule 97 of CPC, the affected parties could have
filed independent suit for claiming their rights over the auctioned property
and could have prayed for injunction in the independent proceedings.
However, after amending the Act in 1976, it is provided that on an objection
raised under Order 21 Rule 97, the right, title and interest on the property
under execution has to be decided under Order 21 Rule 97 and the same is
required to be determined by the Executing Court and not by separate suit
and the parties cannot file independent suit qua the property pertaining to
execution. Obstruction by stranger is also adjudicated by the executing
court under Order 21 Rule 97.
32) There is presumption of jointness of family, however, there is no
presumption of jointness of property. But from the facts stated and the
circumstances noted of the case that the JD was a young person of 27 years
at the relevant time and had inherited business from his father, the
objection of the appellant is necessarily required to be decided as she claim
to have 1/3rd share in the auctioned property. This claim cannot be termed
as frivolous. The claim of 1/3rd share is a natural claim, since the JD has
inherited the father's business and properties. The nucleus for purchase of
auctioned property is possibly of the joint family subject, to proof in this
regard. The circumstance of the case does not make the claim of the
appellant improbable that no opportunity can be given to her to prove her
claim. The mere fact that she has not objected to the sale of plot No. 49 or
that she has herself sold plot No. 10, would not disentitle her to forgo her
right in the auctioned property, moreso when she claims that she resides in
the same property. Once the basic facts stated in the objection application
are established i.e. the husband of the appellant was a successful
businessman and the appellant and her sons inherited the business and
some properties after the demise of her husband and that JD was only 27
years of age at the time of the purchase of plot No. 11 i.e. auctioned
property, the primary burden resting on the objector applicant to prove that
the auctioned property is a joint family property would stand discharged. In
this regard the above noted judgment of Privy Council in the case of
Annamalai Chetti cited supra would apply as it has held that the
circumstances may readily cause the onus to be discharged.
33) In the instant case, thus, once the appellant/obstructionist, who is
the mother of JD No. 1, has claimed her 1/3 independent right over the
auctioned property by filing application under Order 21 Rule 97 of CPC by
demonstrating her prima facie right over the auctioned property, the said
application will have to be decided by permitting the obstructionist/appellant
to lead evidence in support of her claim. As held in the case of Brahmdeo
(supra), the findings recorded in the application under Order 21, Rule 97
would be binding on the parties and separate suit would be barred. Thus,
when there is a semblence of right in the favour of obstructionist the same
has to be adjudicated by framing issues.
34) Although it has been noticed by this Court and the courts below that
there have been multiple proceedings initiated earlier for sale of the
auctioned property and by beating of drum proclamation was made and that
no objection was raised till the execution warrant is issued, the same cannot
be taken adverse to the cause of the appellant. Occasion to file objection
arise when the possession warrant is issued and she is threatened to be
dispossessed. Her right over the property cannot be washed away only
because she did not raise her objection earlier. She is not a judgment-
debtor. She is a stranger to the decree.
35) The reliance placed by the learned counsel for the respondent in the
case of Kadiyala Rama Rao cited supra relates to the objection to be taken
by the JD to the auction sale of the suit property i.e. decreetal property. The
judgment holds that the JD can apply for setting aside the auction sale only
on the ground of fraud and the objection has to be at the earliest time.
36) In view of the observations made above, the substantial question of
law is answered as under :-
"The executing court erred in law in not framing the issues
and permitting the appellant/objection petitioner to lead
evidence to prove her case that the auctioned property is a
joint family property purchased from the funds of the
nucleus of joint family property and thus the auction sale of
plot No.11 is not binding upon her to the extent of 1/3rd of
her share in plot No. 11."
37) For the reasons recorded above, the present second appeal is allowed
and the judgment and decree dated 11.09.2025 passed by the first
appellate Court in R.C.A. No. 116/2025 and the common judgment and
order dated 9.5.2025 passed by the Executing Court in Special Darkhast No.
32/2017 below objection petition at Exh. 210 and below application for
framing issues at Exh. 233 are quashed and set aside and the matter is
remanded back to the execution court for fresh decision. The executing
court to adjudicate objection petition of the appellant filed under Order 21
Rule 97 of CPC by framing issues and permitting the appellant to lead the
evidence. The executing court to decide the objection petition of the
appellant in accordance with law as expeditiously as possible and in any
event within a period of six months from the date of production of the copy
of this order. The learned counsel for the appellant undertakes that the
objection petition would be concluded within a period of six months and he
would conduct the proceeding expeditiously without dalay and make every
endeavour to complete the same within six months. Civil application, if any,
stands disposed of.
[ARUN R. PEDNEKER, J.]
ssc/
