Execution Application Filed Under Order XXI Rule 97-101 CPC Is On Par With Regular Suit: Supreme Court

After separately examining the title and possession evidence, the Court declared the original applicant’s legal representatives the lawful owners and possessors of the disputed property.

The Court was hearing an appeal by the legal representatives of an applicant whose objection under Order XXI Rules 97–101 of the CPC had been dismissed by the executing court. The Karnataka High Court had affirmed the dismissal and held that the applicant should approach the civil court for a declaration concerning the decree.

A Bench of Justice Sanjay Kumar and Justice Sanjeev Sachdeva observed: “The further finding of the learned Judge that ‘the applicant could not raise such contentions before the Executing Court as it has a limited jurisdiction’ reflects total non-application of mind to the scheme of Order XXI, Rules 97 to 101 CPC. An application filed thereunder is on par with a regular suit and that is the reason why an order passed on such application is appealable as a regular first appeal”.

The Bench further added: “The observation of the learned Judge that it was for the applicant to approach the Civil Court for a declaration to set aside the decree passed against him is in utter derogation of the mandate of Order XXI, Rule 101 CPC which explicitly bars a separate suit being filed. The finding of the learned Judge to the contrary is, therefore, wholly unsustainable in law.”

Senior Advocate S.N. Bhat appeared for the appellants, while Senior Advocate Shailesh Madiyal appeared for the respondents.

Background

The original decree-holder instituted a suit in 1987 claiming that a Bengaluru site had been allotted to him through a Hakkupatra dated January 5, 1972. He relied on a photocopy because, according to him, the Tahsildar had withdrawn the original after finding multiple allotments concerning the same sites.

The Trial Court accepted his better claim against the defendant, who had produced no document supporting his possession. In 1999, it declared the plaintiff’s title and directed the defendant to deliver possession. The plaintiff subsequently commenced execution proceedings.

A third-party applicant filed an application under Order XXI Rules 97–101 CPC claiming that he was the site’s true owner and possessor. He produced an original Hakkupatra bearing the same date and asserted that he and his son had constructed a house and three shops on the property.

The executing court dismissed the application. The High Court affirmed that decision, faulted the applicant for not moving the Trial Court to set aside the decree and separately observed that he should approach the civil court for a declaration setting aside it.

Court’s Observations

Rule 101 Explicitly Bars A Separate Suit

The Court held that the High Court had misunderstood the statutory scheme governing claims raised by persons resisting execution.

Referring to Shreenath v. Rajesh (1998) and N.S.S. Narayana Sarma v. Goldstone Exports (P) Ltd. (2002), the Bench stated that an application under Order XXI Rules 97–101 is equivalent to a regular suit and the resulting order is appealable as a regular first appeal.

The Bench also held that the applicant could not be faulted for raising his title claim during execution. Since he claimed to possess the site but had not been impleaded in the original suit, the Court observed that he could have become aware of the decree only when it was sought to be executed against him.

Executing Court Improperly Discounted Evidence

The Court faulted the executing court for discounting the evidence of the applicant’s son on the ground that he lacked personal knowledge of the 1972 grant.

The Bench noted that the applicant had authorised his son through a power of attorney to prosecute the application. The applicant had also stated that they had jointly constructed the house on the site.

The Court observed: “The very fact that the original document was produced by him ought to have weighed with the learned Judge, but it failed to do so.”

The Bench held that the executing court should have considered the original title document and the son’s knowledge of the construction and possession instead of rejecting his testimony merely because of his age when the grant was made.

Original Hakkupatra Supported The Applicant’s Title

The Court separately examined the competing title evidence. It noted that the decree-holder had never produced his original Hakkupatra and had relied only upon a photocopy. The original applicant’s title document, however, remained in his possession and was produced in evidence.

The decree-holder claimed that the Tahsildar had withdrawn his original document because multiple allotments had been made concerning the same sites. The Court held that the retention of the original document by the obstruction applicant supported the genuineness and continued validity of his allotment.

The Bench stated: “The only inference that could be drawn therefrom was that the said allotment was genuine and was not cancelled, as was the case with the allotment in favour of the decree holder/plaintiff, whose original Hakkupatra was admittedly taken back and not returned.”

The Court also noted that the Tahsildar who filed an affidavit before the Supreme Court could not locate the 1972 allotment records but expressed no suspicion concerning the original document produced by the applicant’s family.

Decree-Holder’s Admissions Supported Possession

The Court observed that the decree-holder had admitted that the obstruction applicant constructed a reinforced-concrete house comprising ground and first floors on the site and had leased three ground-floor shops to tenants.

The Bench held that this admission undermined the decree-holder’s case that the original defendant had trespassed upon the property and constructed only a temporary hut. The decree-holder had also failed to explain when the obstruction applicant entered possession, how he constructed a permanent building or why no steps were taken to restrain him.

The Court observed: “Admittedly, no steps were taken by him to restrain [the construction] at any stage.”

The Bench further found that the decree-holder had no title document supporting his claim in the obstruction proceedings because his attempt to produce a certified copy of the earlier photocopy had failed.

Tax Payments Could Indicate Possession, Not Title

The Court observed that both sides had made intermittent tax payments concerning the site. It held that such payments could support an inference regarding possession but could not establish ownership.

The Bench stated: “We find that taxes were paid intermittently by both parties in relation to the suit site. Tax payments, at best, could lead to an inference only as to possession but not title.”

The Court held that relying upon sporadic tax payments to determine title was unwarranted when one rival claimant had produced the original title document.

Conclusion

The Supreme Court allowed the appeal and set aside the Karnataka High Court judgment and the executing court’s order dismissing the application under Order XXI Rules 97–101 of the CPC.

After separately examining the title and possession evidence, the Court declared the original applicant’s legal representatives the lawful owners and possessors of the disputed site. It also set aside the 1999 judgment and decree declaring title in favour of the original decree-holder.

Pending applications were disposed of, and the parties were directed to bear their own costs.

Cause Title: Balakrishna (Dead) Through Legal Representatives v. G.N. Kanniah Naidu (Dead) Through Legal Representatives and Another (Neutral Citation: 2026 INSC 1155)

Appearances

Appellants: Senior Advocate S.N. Bhat; Advocates D.P. Chaturvedi, Tarun Kumar Thakur, Parvati Bhat and Anuradha Mutatkar

Respondents: Senior Advocate Shailesh Madiyal; Advocates A. Sumathi, Mahesh Thakur, Siddhartha Sati, Shubhansh Thakur, Narveer Yadav, Ruchi Kumari, Anthony Raju, Neha Singh and V.N. Raghupathy

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