“Difficulties Of A Litigant In India Begin When He Has Obtained A Decree”: Bombay High Court Dismisses Obstructionist’s Plea Against 1974 Eviction Decree
The Bench noted that an obstructionist cannot invoke Section 47 CPC in Order XXI Rule 97 proceedings or take a nullity plea needing factual inquiry; Court imposed ₹1 lakh costs.
Justice Sandeep V. Marne, Bombay High Court
The Bombay High Court has dismissed a revision application and a writ petition filed by an obstructionist to the execution of a 1974 eviction decree. In doing so, it noted that “the difficulties of a litigant in India begin when he has obtained a decree”, a phrase first used by the Privy Council in 1872. The Court observed that successful litigants are frequently deprived of the fruits of their decree through procedural hurdles and obstruction during execution, and described the case as one such instance.
The Bench held that an obstructionist whose objection is registered under Order XXI Rule 97 CPC cannot file an application under Section 47 in those proceedings. The Bench reasoned that the two provisions operate in different spheres: Section 47 is for parties to the suit or their representatives, while Rule 97 governs third-party obstruction. An obstructionist cannot assert an independent right to occupy the property, which suggests the decree does not bind him, and at the same time challenge the decree’s validity as if he were a party. The Court also held that an executing court cannot go behind the decree on a nullity plea requiring factual inquiry. Calling the application a gross abuse of process, it imposed costs of Rs. 1,00,000.
A Bench of Justice Sandeep V. Marne observed, “The phrase ‘The difficulties of a litigant in India begin when he has obtained a decree’ was first observed by the Privy Council back in the year 1872 in General Manager of the Raj Durbhunga v. Coomar Ramaput Sing1 and tragically, the observations made centuries ago is still a reality. The delay in Court systems and the subsequent struggle to execute decrees is a well recognised systemic issue in the legal system. In Periyammal (dead) Through Legal Representatives and Ors. Versus V. Rajamani and Anr., the Apex Court has highlighted the fact that winning a civil suit is only half the battle, as successful litigants are frequently deprived of the fruits of their decree due to complex procedural hurdles and intentional obstructions during execution proceedings…”.
“…This is one such unfortunate case where the landowner is fighting a court battle for the last 63 long years and despite succeeding in the suit and securing an eviction decree on 14 August 1974, he/his legal heirs are still waiting for enjoying the fruits of the decree. The landowner is kept engaged in a maze of jurisdictional objections both by the original lessee and also by the obstructionist. The Revision Applicant/Petitioner, who has presented obstruction to execution of the decree, has successfully delayed the execution proceedings for the last 33 long years”, the Bench noted.
Advocate Yuvraj Narvankar appeared for the petitioner and Advocate Rahul Soman appeared for the respondent.
“…the proceedings under Section 47 and Order XXI Rule 97 of the Code operate in different spheres, which can be filed by different persons and for distinct purposes. Therefore, an obstructionist at whose instance proceedings under Order XXI Rule 97 of the Code are initiated cannot file an application under Section 47 of the Code in those proceedings. The obstructionist cannot seek to prove his independent right to occupy the decretal property under Order XXI Rule 97 (thereby suggesting that the decree does not bind him) and at the same time question validity of the decree by raising objection under Section 47 of the Code. He cannot interchange is avatars from a third-party objector (under Order XXI Rule 97) to a party to the suit (required for Section 47). Therefore the application filed under Section 47 of the Code in proceedings initiated under Order XXI Rule 97 of the Code is wholly non-maintainable”, the Bench noted further.
The suit property, originally agricultural land, was leased to Poona Fuel Merchants Association Ltd. on June 1, 1944, with permission to erect sheds for storing coal. After a Small Causes Court returned the plaint for want of jurisdiction, the landlord’s suit was decreed by the District Judge, Pune, on August 14, 1974. This Court confirmed the eviction decree in First Appeal on August 2-3, 1982. The petitioner, claiming a 700 sq. ft. tenancy under a rent receipt of January 4, 1999, obstructed execution of Darkhast No. 10 of 1993.
On September 3, 2007, the Executing Court treated the obstruction as an application under Order XXI Rule 97. The petitioner then filed an application under Section 47 pleading that the decree was a nullity because the Bombay Rent Act applied. It was rejected on July 14, 2015, with costs of Rs. 5,000. A second application, to bar the decree holders from leading evidence for want of a reply, was rejected on June 9, 2015.
The Court held that Section 47 covers only questions between parties or their representatives, whereas Order XXI Rule 97 governs third-party obstruction. The petitioner, who claimed a right acquired after the decree, could not shift roles midway. The Court called the nullity plea self-destructive, since voiding the decree would restore the original judgment debtor to possession. It added that a decree holder’s own representative cannot attack the decree.
The petition and revision were dismissed. The petitioner must deposit Rs. 1,00,000 in the Executing Court within four weeks, payment being a condition precedent to prosecuting the obstruction application. The Executing Court was asked to decide the execution preferably within four months.
Cause Title: Sameer Dinkarrao Javalekar v. Gulab Haribhau Ladkat & Ors (Neutral Citation: 2026: BHC-AS:42341)
Appearances:
Petitioner: Yuvraj Narvankar with Raufa Shaikh and Kshitij Munj, Advocates.
Respondent: Rahul Soman with Suyash More, Advocates.