This article is written by Sushant Kandwal, pursuing Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from Lawsikho.com. Here he discusses “Concept and Procedure of Recovering of Possession of Immovable Property”.

Introduction

In India, there’s a law to protect the tenants by constraining the landlord from taking law in their hand and to prevent the landlord from dispossessing the tenants from its possession of the property by use of force or intimidation. The Courts usually scowls upon the dispossession which is not carried out in accordance with the law.  In this article, we will study the concept and procedure of recovering possession of the immovable property.

Relief under Specific Relief Act, 1963

Relief to Tenants

The statutory recognition of the rule can be read under Section 6 of the Specific Relief Act, 1963 which provides remedy to a person who is dispossessed by use of force or intimidation from an immovable property, otherwise than in due course of law, can bring a suit for seeking recovery of possession irrespective of any other title that may be set up in such suit. Therefore, a landlord is not permitted to take a forcible possession and they must obtain such relief by following due process of law.

Relief to Landlord

The Section 6 of the Specific Relief Act, 1963 visibly (under sub-Section 4) protects the right of a rightful owner of the immovable property and states that nothing in the Section shall forbid any person from suing to establish his title to such property and to recover possession thereof. It means that the restoration of possession in such a suit is always subject to a regular suit title and the person who has a real title or even the better title cannot be prejudiced in any way by a decree in such a suit.

Procedure to recover possession of immovable property

Section 5 and 6 of the Specific Relief Act 1963, which states that a person who is entitled to recover the possession of the immovable property may recover it in the manner as provided in the Civil Procedure Code. Section 5 of the Specific Relief Act 1963 is read as follows:-

Recovery of specific immovable property

A person entitled to the possession of the specific immovable property may recover it in the manner provided by the Code of Civil Procedure, 1908 (5 of 1908).

Section 6 Suit by person dispossessed of immovable property

1. If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person he has been in possession or any person] claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. 

2. No suit under this section shall be brought—

 (a) after the expiry of six months from the date of dispossession; or 

 (b) against the Government. 

3. No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

4. Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

The Division Bench comprising of three learned Judges held that a true owner has every right to dispossess or throw out a trespasser while he is in the act or process of trespassing but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances, the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies under the law (Ram Rattan v. State of Uttar Pradesh).

Procedure under Civil Procedure Code 1908 for Recovering of possession of immovable property

An application under Order XXI deals with the execution of decrees and orders. Here, we will deals with the aftermath of the Court proceedings against the judgment debtor.

1. Application for execution under Rule 10 and 11

A decree holder desire to execute decree may apply for the application under Rule 10 which state as under:

“10. Application for execution–  Where the holder of a decree desires to execute it, he shall apply to the court which passed the decree or to the officer( if any) appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to another court then to such court or to the proper officer thereof ”.

The execution application for the decree either be oral under Rule 11(1) or in writing under sub Rule 2. However, in the above scenario written application will be given since, oral application is applicable only when the issue is of payment of money and the written application shall contain the following details which are given below:

1. Number of Suit
2. Name of parties
3. Date of the decree
4. Any appeal has been preferred from Decree
5. Any matter of payment or adjustment in controversy
6. Any previous application has been made for execution
7. Amount of cost awarded
8. Cost Amount
9. Name of the person against whom the execution decree is sought; and
10. Mode in which the assistant of the court is required whether

1. By the delivery of any property specifically decreed;
2. By the attachment, or by the attachment and sale, or by the sale without attachment, of any property;]
3. By the arrest and detention in prison of any person;
4. By the appointment of a receiver;
5. Otherwise, as the nature of the relief granted may require.

(3) The Court to which an application is made under sub-rule(2)  may require the applicant to produce a certified copy of the decree.

Rule 11 is read as follows:

“11. Oral Application–  1) Where a decree is for the payment of money the Court may, on the oral application of the decree holder at the time of the passing of the decree, order immediate execution thereof by the arrest of the judgment debtor, prior to the preparation of a warrant if he is within the precincts of the Court.

Written Application– 2)  Save as otherwise provided by sub rule(1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars namely:- 

1. Number of Suit
2. Name of parties
3. Date of the decree
4. Any appeal has been preferred from Decree
5. Any matter of payment or adjustment in controversy
6. Any previous application has been made for execution
7. Amount of cost awarded
8. Cost Amount
9. Name of the person against whom the execution decree is sought; and
10. Mode in which the assistant of the court is required whether

1. By the delivery of any property specifically decreed;
2. By the attachment, or by the attachment and sale, or by the sale without attachment, of any property;]
3. By the arrest and detention in prison of any person;
4. By the appointment of a receiver;
5. Otherwise, as the nature of the relief granted may require.

(3) The Court to which an application is made under sub-rule (2)  may require the applicant to produce a certified copy of the decree”.    

2. Application under Rule 13 to 18

The application for attachment of immovable property belonging to the judgment debtor needs to be provided with the two things; the full description of the property and interest or share of judgment-debtor in that property. The application can also be filed for the requirement of record in collector’s register for execution by joint decree holders, for execution by the transferee in whose favour the decree has been transferred by writing or by operation of law. The application can be filed for cross decrees execution for the equal amount or unequal then of the large amount after reduction of a smaller amount. The Court has to take into the confidence of the above requirements, must make sure that there is an amendment in the application and the same shall be signed by the judge.

3. Show cause notice against execution under Rule 22 to 23A

After applying for the application, if the judgment debtor is not appearing to the proceedings then the court shall issue a notice to the judgment debtor to oppose the execution, but if the execution application is made more than two years after the date of the decree or against the legal representative of a party to the decree, the objection from judgment debtor shall not be entertained unless he deposits decretive amount, security or furnishes the security for the due performance in case of any other decree.

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4. Endorsement of the process of execution by the Court Under Rule 24 and 25

The court will issue the process for execution that must be properly signed, stamped, sealed and delivered to the proper office. The court will endorse the day and the manner of execution and if there is a delay then the reason for delay shall be recorded in writing.

5. Stay on Execution Under Rule 26

The stay can be granted by the Court of first instance that passed the decree.

6. Proclamation under Rule 35

If the decree is for joint possession of the immovable property then a copy of the warrant is to be affixed at conspicuous part of the property, and institute proclamation by beating the drum. However, for the Decree about delivery of immovable property when occupied by the tenant, the Court will order to fix a copy of the warrant to some conspicuous part of the property and institute proclamation by beating the drum.

7. Issuance of Warrant and show cause notice under Rule 38 and 37

If the judgment debtor is not appearing before the Court even after proclamation orders, then the arrest warrant shall be issued against him and also serve with a show-cause notice, if he is in the detention.

8. Evidence Recording Under Rule 40

The court will hear the judgment debtor and will record all the evidence. It will order the judgment debtor to be detained in the custody of officer until and unless he furnishes security, he may be released on pre-arrest bail.

9. Attachment of judgment Debtor property Under Rule 41 to 53

The next stage is of attachment of property if judgment debtor denies appearing or rejects to handover the property of a dispossessed person, then the attachment can take place in different forms of mesne profits of agricultural produce not less than 20 days if destroyable, of immovable property, of debts and shares in others possession by prohibiting the persons holding them in writing or attachment of property in partnership and in custody of court or public officer where the property is decree through notice.

10. Auction of attached property Under Rule 64 to 68

The last stage is about auctioning the property attached through court officer by proclamation of the auction or by placing publication in gazette or local newspaper along with date and time.

Limitation period

Under Article 65 of the Limitation Act, a suit for possession of immovable property or any interest therein, based on title, can be filed by a person claiming title within 12 years. The limitation under this Article commences from the date when the possession of the defendant becomes adverse to the plaintiff. In these circumstances, it is apparent that to contest a suit for possession, filed by a person on the basis of his title, a plea of adverse possession can be taken by a defendant who is in hostile, continuous and open possession, to the knowledge of the true owner, if such a person has remained in possession for a period of 12 years. (Bhim Singh & Ors V/s Zila Singh & Ors).

Conclusion

The section 5 of Specific Relief Act, 1963 recommends landlord who is seeking to recover the possession of immovable property must follow the due procedure of law as mentioned under the Civil Procedure Code 1908 and must avail the remedy on time, failure to avail the remedy on time means the landlord relinquished his proprietary rights over his immovable property, whereas, Section 6 of specific relief Act, 1963 preserves the right of the tenant by standing as a shield to constrained the landlord from forcibly removing the tenant from immovable property.

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