The article has been written by Ayush Verma, a 2nd-year student at RMLNLU, Lucknow. It discusses various provisions relating to the delivery of property under CPC.

Introduction

When a decree is passed by a Court in the favour of a decree-holder, he needs to apply to the court for execution of the decree. Execution of a decree means the implementation of a judgement given by the Court. The decree is executed against the judgement-holder who has to satisfy the decree when the court orders for such execution. There are many ways through which a decree can be executed. One such way is by the delivery of property.

Section 51(1) of the CPC says that the Court has the power to order execution of the decree, on the application of the decree-holder, by delivery of any property specifically decreed. Provisions in Order XXI provide for delivery of property under CPC.

It is said that justice must not only be done but it must appear to have been done. Therefore, granting a decree is not enough, but the Court has to make sure that such a decree should be properly enforced. Keeping in mind these words, when a Court asks for delivery of a property, it must be enforced properly and the decree-holder has the right to move to the Court where the property has not been delivered to him.

Kinds of property and its mode of delivery

There are two kinds of property:

• Movable; and
• Immovable Property.

There are different modes of delivery depending on the kinds of property.

Movable property

Movable property refers to assets that can be moved from one place to another like vehicles, jewellery etc.

Order XXI Rule 79 reads that where a moveable property is to be sold, of which actual seizure has been made, it shall be delivered to the purchaser. Where a moveable property is in the possession of some person other than the judgement-debtor, the delivery to the purchaser shall be made after giving the notice to the person in possession prohibiting him to deliver the property to any other person except the purchaser.

Order XXI Rule 31 provides that where the decree is for any specific moveable property or for any share in such property, it may be executed by the seizure of that property or share and by delivery to the party to whom it has been adjudged, or to such person who is appointed for receiving delivery on his behalf.

Immovable property

Immovable property refers to real estate property that cannot be displaced like house, factory etc. Order XXI Rule 35 states that where the decree is for delivery of any immoveable property, possession of such property shall be delivered to the party to whom it has been adjudged, or to the person who has been appointed by that party to receive the delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the land. And, where a decree is for the joint possession of immoveable property, it shall be delivered by affixing a copy of the warrant in some conspicuous place of the property and proclamation by beating of drums, or other customary mode, the substance of the decree at some convenient place. Lastly, where possession of any building or enclosure is to be delivered and the person in possession who is bound by the decree does not give access to that property, the Court may, through its officers, after giving reasonable warning and facility to any woman not appearing in public due to the customs of the country, to withdraw, remove or open any lock or bolt or by breaking the door or any other act to put the decree-holder in possession of the property.

Order XXI Rule 36 states that where a decree is for delivery of any immovable property that is in the occupancy of a tenant or any other person who is entitled to occupy such property and is not bound by the decree to relinquish such occupancy, the Court shall make an order for delivery by affixing a copy of the warrant in some conspicuous place on the property, and by proclamation to the occupancy by beating of the drums or any other customary mode at some convenient place, the substance of the decree in regard to the property.

In the case of Mumtaz Jehan v. Insha Allah, it was held that under Rule 35(1) actual possession is delivered by removing all persons bound by the decree and Under Rule 36, symbolic possession is delivered where the property is in occupancy of the tenants entitled to occupy and not bound by the decree to deliver possession.

In the case of Ratan Lal Jain v. Uma Shankar Vyas, it was held that the former is actual or physical delivery of the possession while the latter is delivery of formal or symbolic possession.

The case of Shamsuddin v. Abbas further cleared the difference between the two. It held that the person in actual possession is not physically dispossessed from the property given to him in execution of the decree. While delivery in Rule 36 remains delivery of formal or symbolic possession so far as the person in actual possession is concerned but as against the person bound by such decree, it amounts to delivery to possession.

Resistance to delivery of possession

A situation may arise where the judgement debtor or any other party may resist or obstruct to deliver the decretal property. The decree-holder, in such a case, can move to the court for enforcement of his decree by removal of such obstruction. The provisions related to resistance or obstruction to delivery of possession has been given from Rule 97 to Rule 103 of Order XXI.

Scope of inquiry

The inquiry needs to be done regarding the possession of the decree by a third party or the judgement debtor. If the person resisting to deliver the possession is judgement debtor or any other person claiming through him, then the scope of inquiry would be of summary nature. However, if a third person is claiming his independent right, title or interest in the immoveable property, then the scope of inquiry would be wider. The executing Court can frame the issues and call upon the parties to lead the evidence in their favour.

Nature of Inquiry

When there is a resistance from a stranger to deliver the possession, and which is recognised by the Executing Court as well as by the decree­ holder, the only remedy available to the decree-holder is to move against such stranger under Order XXI Rule 97 sub­rule (1) and he cannot by­-pass such obstruction caused by the stranger and insist on re­issuance of warrant for possession by the help of police force under Order XXI, Rule 35, as that course would amount to by-passing and dodging the procedure laid down under Order XXI Rule 97 for removal of obstruction of purported strangers to the decree. When the Executing Court recognises such obstruction by a stranger to the decree, it is difficult to appreciate how the Executing Court can tell such stranger that he must first lose possession and then only remedy available to him is to move an application under Order XXI Rule 99 and pray for the restoration of possession.

Application by decree-holder or auction-purchaser

Where a decree-holder is resisted or obstructed in execution of the decree for possession and as a result of which, the decree for such possession cannot be executed in the manner as specified under Order XXI Rule 35, then the decree-holder can move an application under Order XXI Rule 97 for removal of the obstruction. The Court in the case Brahma Deo Chaudhary v. Rishikesh Prasad Jaiswal held the same.

And, the Court after hearing both the parties (i.e decree-holder and obstructionist) can pass an order that it finds appropriate, after adjudicating the matter between the parties as given in sub-rule (2) of Rule 97 of Order XXI.

Application by another person

Order XXI Rule 99 states that where a person other than the judgement-debtor is dispossessed of any immovable property by the decree-holder in whose favour the decree was passed, or where such property has been sold in order to execute the decree, by the purchaser, such a person who has lost his property may make an application before the court complaining of such dispossession. The Court has to adjudicate upon the matter between the parties under sub-rule (2) of Order XXI Rule 99.

Hearing of application

Order XXI Rule 105 deals with the provision relating to hearing of application. It states that:

• The Court before which an application is made under any of the foregoing rules of this Order (i.e Order XXI) is pending, may fix a day for the hearing of the application.
• If the applicant does not appear on the day fixed by the Court or any other date to which the hearing may be adjourned, when called for the hearing of the application, the Court may make an order for dismissal of his application.
• Where the applicant appears before the Court but the opposite party against whom the notice has been issued by the Court, it may hear the application ex-parte and pass an order that it thinks fit.

Questions to be determined by the Court

Order XXI Rule 101 states that all the questions (including those related to the right, title or interest in the property) arising between the parties to a proceeding on an application made under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application must be determined by the Court dealing with the application. It further states that these questions shall not be determined 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 be vested with the jurisdiction to decide such questions.

Adjudication by the Court

Where an application has been made by an applicant under Order XXI Rule 97, the Court has the power to pass such orders as given in Rule 98 of Order XXI. It states that the Court shall, upon the determination of the questions given in Rule 101, in accordance with such determination and subject to the provisions of sub-rule (2) –

• Make an order allowing the application and directing that the applicant be put in the possession of the property.
• Make an order dismissing such an application.
• Pass such order as it thinks fit keeping in mind the circumstances of the case.

Sub-rule (2) of Rule 98 states that where the Court, after determination of questions as given in Rule 101, is satisfied that the resistance or obstruction was occasioned without any just cause by the judgement-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 to be put in the possession of the property. And, if the restriction or obstruction still exists in obtaining possession by the applicant, the Court may also, at the instance of the applicant, order that the judgment-debtor or any other person acting at his instigation or on his behalf be detained in the civil prison for a term which may extend up to thirty days.

Under Rule 100, similar orders (as given in sub-rule (1) of Rule 98) can be passed by the court, where an application is made complaining dispossession.

Transferee pendente lite

Rule 102 of Order XXI talks about “Rules not applicable to transferee pendente lite. It states that nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of any immovable property by a person to whom the property was transferred by the judgement-debtor after the institution of the suit in which the decree was passed or to the dispossession of any such person.

Orders to be treated as decrees

Rule 103 of Order XXI states that where an application has been adjudicated upon under Rule 98 and 100, the order made by the Court shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.

Subject to the result or pendency of a suit

Order XXI Rule 104 states that every order made under Rule 101 or 103 shall be subject to the result of a suit that may be pending in the Court on the date of commencement of the proceeding in which such order is made if in that suit the party against whom the order under Rule 101 or 103 is made has sought to establish a right which he claims to the present possession of the property.

Conclusion

Delivery of property is an important way of satisfying the decree that is passed in favour of a decree-holder. A decree for delivery of movable property is granted under Rule 31 while Rule 35 and 36 deals with decree granting immovable property. However, a situation may arise where resistance or obstruction is caused in delivery of those properties. In such situations, the provisions given under Rule 97 to 103 can be utilised.

References

• http://mja.gov.in/Site/Upload/GR/Title%20NO.146(As%20Per%20Workshop%20List%20title%20no146%20pdf).pdf
• https://lawtimesjournal.in/delivery-property-takes-place/

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