The Supreme Court has observed that the Executing Court cannot dismiss an Execution Petition by treating the decree to be inexecutable merely on the basis that the decree-holder has lost possession to a third party/encroacher.

The Court allowed a set of Civil Appeals filed by a lessor against the order of the High Court, which affirmed the Executing Court's decision. The Executing Court had determined that the order for possession of immovable property could not be enforced against the judgment-debtor as the encroacher was not ‘party to the suit’.

The Apex Court has emphasized that the Executing Court was responsible for issuing a warrant to physically hand over the land to the decree-holder (Appellant), and if any third party resisted, Rules 97 to 101 of Order XXI of the Civil Procedure Code (CPC) would be applied for adjudication. The Court emphasized that dismissing the execution petition based on the decree-holder losing possession to a third party/encroacher is not permitted, as such would enable judgment-debtors (Respondent) to avoid fulfilling the degree-holder's rights and entitlements, thus making it impossible to execute the decree.

The Bench comprising Justice B.V. Nagarathna and Justice Prashant Kumar Mishra observed, “It was the duty of the Executing Court to issue warrant of possession for effecting physical delivery of the suit land to the decree-holder in terms of suit schedule property and if any resistance is offered by any stranger to the decree, the same be adjudicated upon in accordance with Rules 97 to 101 of Order XXI of the CPC. The Executing Court could not have dismissed the execution petition by treating the decree to be inexecutable merely on the basis that the decree-holder has lost possession to a third party/encroacher. If this is allowed to happen, every judgment-debtor who is in possession of the immoveable property till the decree is passed, shall hand over possession to a third party to defeat the decree-holder’s right and entitlement to enjoy the fruits of litigation and this may continue indefinitely and no decree for immovable property can be executed

Senior Advocate Gopal Sankaranarayanan with Advocate Neeraj Kishan Kaul appeared for the Appellant and Advocate Praveen Swarup appeared for the Respondent/Corporation.


The Appellant (original Plaintiff) leased land (suit land) within the Municipal Corporation Delhi to the Respondent (original Defendant) for ten years, with a monthly rent of Rs. 30. After the lease expired on 06.01.1983, the Appellant requested that the Respondent vacate the land, but Respondent refused. The Appellant filed a lawsuit for possession of the land, which was granted. However, when the Appellant attempted to execute the warrant with the help of the police, they were met with resistance from the Respondent’s employees. The Respondent then applied to stay the execution of the warrant, citing the demolition of a school building on the land and its impact on around 400 students.

The Appellant also applied for fresh possession warrants before the Court and the Respondent applied to stay the execution proceedings, claiming they were acquiring the land. The Court ultimately dismissed the Respondent's applications, as they had not made any serious effort to acquire the land in the past eight years. The Appellant then filed a contempt petition against the Respondent, which was disposed of. The Appellant obtained new possession warrants, but the Executing Court dismissed their execution proceedings because the encroachers on the land were not parties to the suit. The Appellant appealed the decision, but the High Court dismissed it, citing the failure of the Appellant to identify the encroachers despite specific instructions. The Appellant then filed a review petition, which was also dismissed. Aggrieved by the order and judgement, the Appellant filed a Civil Appeal before the Supreme Court.

The Court found that the Respondent corporation was the lessee of the land and their lease had expired after 10 years. Therefore, they were required to vacate the land and physically hand it over. The Appellant had the right to obtain an eviction decree and take possession of the land. The Respondent was instructed to remove their construction and surrender possession of the land per the Trial Court's decision.

In the judgment and decree dated 23.03.1990, the Trial Court categorically held that the respondent-Corporation is the lessee and since the lease has already been determined upon expiry of lease period of 10 years, the respondentCorporation/defendant is bound to deliver physical vacant possession of the suit land and also to pay the rent and that the appellant/plaintiff is entitled to a decree of ejectment and delivery of vacant possession by the respondentCorporation/defendant in respect of the suit land as shown red in the site plan in Exhibit P4. The respondent Corporation/defendant was also directed to hand over the possession of the suit land after removing the construction. This decree has attained finality”, the Bench noted.

The Court referred to the cases of Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal & Anr. [(1997) 3 SCC 694], Bhanwar Lal vs. Satyanarain [(1995) 1 SCC 6], Shreenath & Anr. Vs. Rajesh & Ors. [(1998) 4 SCC 543], Sameer Singh & Anr. Vs. Abdul Rab & Ors. [(2015) 1 SCC 379], and Jini Dhanrajgir & Anr. Vs. Shibu Mathew & Anr. The Court held that the Executing Court was responsible for issuing a warrant of possession to transfer the suit land to the decree-holder as outlined in the suit schedule property. If anyone not a party to the decree resists, the matter should be resolved per Rules 97 to 101 of Order XXI of the CPC, the Court asserted.

Therefore, the Court directed the Executing Court to execute the decree by effecting delivery of physical vacant possession to the Appellant following the provisions contained in Order XXI CPC.

Accordingly, the Apex Court allowed the appeals and set aside the impugned order of the High Court.

Cause Title: Smt. Ved Kumari (Dead Thr Her Legal Representative Dr. Vijay Agarwal) v Municipal Corporation of Delhi (Thr Its Commissioner) (2023 INSC 764)

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