 beyond law CLC and ULS Punjabi University Chandigarh. Welcome you all to a session, which will be according to us, a vilifying we will have insights. Those who have been following beyond law CLC and ULS Punjabi University Chandigarh, know the fact that we have been holding webinars on different issues. And amongst us, we have honorable Mr. Justice, Katie Sankaran, who is a former judge of the Kerala High Court. Who has a passion towards the teaching or the law so that people down the professionals can learn that. He had also been associated with the Kerala judicial academy and he has been teaching in different academies. And he has his own YouTube channel on which he takes small issues, which are relevant because CPC itself is a very, very broad concept. And as we all know, the execution, we say that to have a decree is not that difficult, but to execute the decree is much tougher. And when we had a discussions with honorable Mr. Justice, Katie Sankaran, he and the team was of the opinion that once there is an execution, then how there has to be delivery. And when, if there is a resistance to delivery or removal of resistance, these are the key issues. If one has a decree and how to get it, they say that to plant the tree is not all that difficult. But to enjoy the fruits is a real jump as to whether you do it during your lifetime or how do you go about it, that's the key issue. Rather than going and explaining the entire issues, why not have the man of the moment speaking for himself. On the earlier occasion, as you all know, he had been kind enough to give the insights on the principles of resjudicator and rest subjudice. That session by him had been well received. This I'm speaking on the basis of facts because it's available on the YouTube channel as well as on the Facebook that people are actually appreciating that. Over to you, sir. We will just have the insights. We all know that in this present case, we will have good delivery of the session and there won't be any resistance from anybody. They will all latch it up, right, sir? Thank you, Mr. Vikas and dear friends. Is it audible? Mr. Vikas, it is audible. Is it audible to all of you? So I will ask them to post it on the chat and to me, it's audible. Audible. Is it audible to all the audiences? Yes, sir. I've received the messages. Yes, we can start the session. Audible. Now the subject is delivery, resistance to delivery and removal of resistance. What are the relevant provisions with respect to this subject? And if you have a paper with you, please note, at first we have to see section 51. What are the powers of the court to enforce execution? Section 51 is a reservoir of powers from which emanates the various procedural powers which are given to the civilians. Then so far as delivery is concerned, the relevant provisions in order 21 are rule 31, rule 35 and rule 36, resistance to delivery and removal of resistance. The relevant provisions are section 74, and order 21 rules 95, 96 and 97 to 104. These are the relevant provisions with respect to the subject which we are dealing with today. Now, coming to the powers of the executing court, I said section 51. Let us see section 51. Powers of the court to enforce execution. Subject to such conditions and limitations as may be prescribed. I'm sorry, I'm reading it. Unless we read the statutory provisions, after one and a half hours of lecture, nothing will remain with you. So we have to analyze the relevant provisions, understand its real scope and then apply it. After this webinar, if a lecture class one hears, after a few days everything will vanish. I do not propose to make such a lecture. I believe that after this one and a half hours or two hours exercise, at least 50% of it must remain with you and it must be useful to you in the practical sense of the term, in the practical day-to-day life as a law. Then only the task assigned to me would be complete. Now we will go to section 51. Subject to such conditions and limitations as may be prescribed. Prescribed is defined in section two, prescribed by rules. The court may, for the application of the decree holder, order execution of the decree. A, by delivery of any property specifically, decree that is order 21, rule 35. That power relates to order 21, rule 35. B, by attachment and sale or by sale without attachment of any property. The relevant provisions on this clause B are section 60, 65 section 65 to 67 and order 21, rules 41 to 54, 58 and 64 to 104. Such a vast area. Then by arrest and detention, et cetera, et cetera. That is sections 55 to 59 and order 21, rule 11A, 22 and 37 to 40. And clause B by appointing a receiver, order 40 for zero. And then restuary clause in such a manner as the nature of the relief granted may require, that is up to the court, depending on the facts and circumstance of each case. These are the wide powers given to the executive. The purpose is to execute the decree. Passing the decree by itself would not be sufficient. The fruits of the decree will be received, will be enjoyed by the decree holder, only if the decree is executed smoothly. And if it is a case where he has to get possession of the immobile property or mobile property, that he has to receive the seat. How to execute the decree? See a decree for example, a decree for payment of money. It can be executed by arrest and detention of the jet manager in civil prison, by attachment and sale of his immobile property. And then all the attendant circumstances and provisions relating to sale will take place. Right from attachment, then goes to proclamation of sale and all the relevant provisions with respect to it, objections to proclamation, then settlement of proclamation, then sale, then there is provision for setting aside the sale on three grounds. One is a whole agent and by deposit of the amount, by rule 90, by setting aside the sale on the ground of material irregularity or fraud in publishing and conducting the sale. And three, that is rule 91, that can be taken advantage of by the auction purchaser on the ground that the judgment had now title to the property. Then comes the confirmation of sale. Confirmation of sale takes place, sale becoming absolute takes place under rule 92, which says that if no application is made under rule 89 or 90 or 91, or if such application is filed and disallowed, then the court shall confirm the sale. And the sale will become absolute. Then a sale certificate will be issued. That is, there is different opinion whether it is a document of title or whether it is only evidence of time, whatever it is. The title passes. And from one date onwards, section 65 says that the title will go to the auction purchaser from the date of sale and not from the date of its confirmations. Suppose on 11 2019, the sale took place. And the proceedings went on. Various objections were raised and all were considered. And ultimately an application was made to set aside the sale under rule 90. That took one and all years. And ultimately the sale was confirmed on, say, 16 2020. Sale took place on 11 2019. On confirmation of the sale, that sale will relate back to the date of sale, section 65 counts. Then comes the delivery. And when delivery is attempted, sometimes there may be resistance by the judge monitor or by his previous or by third parties. When a third party raises an objection, obstruction to the delivery, what should we do? What are the changes brought out in 1976 by the CPC Amendment Act? And what was the position before 1976? And what is the position after 1976? What care should be taken by the advocates with respect to a claim, with respect to an objection, and with respect to the conduct of the claim petitions? And what steps should be taken by the court in discharging their judicial functions? These are all the matters which may arise for consideration in this webinar while dealing with the subject. Now we'll go to Rule 31, Specific Mobile Property, Order 21, Rule 31, Decree for Specific Mobile Property. How it is taken by the delivery thereof to the party or by actual seizure and by delivery thereof or by the detention and civil present of the judge monitor or by the attachment of his property or by both. The court has wide powers. Then the procedure is provided in Sub Rule 2 and Sub Rule 3 and 4, that I'm not going to read that, you may read it, that is very clear. And then comes Rule 36, 35. Rule 35 is being constantly applied in courts when it comes to immobile property. 35, Decree for Immobile Property, where the decree is for delivery of an immobile property. Possession thereof shall be delivered to the party to whom it has been adjudged. Or to such person as he may have a point to receive delivery on his behalf. And if necessary by removing any person bound by the decree who refuses to be gained the property. To where the decree is for joint possession of immobile property, such possession shall be delivered by a fixing a copy of the warrant in some conspicuous place on the property and by proclaiming by beat of drum or other custom remote at some convenient place, the substance. Then where a possession of any building or enclosure is to be delivered and the person in possession does not afford free access. The court through its officers may, after giving reasonable warning and facility to anyone not appearing in public according to the custom of the country to be drawn, remove open or open any lock or bolt or break open any door or do any other act necessary for putting the decree holder in possession. All these procedures are available for effecting delivery of immobile property. These are the powers. By removing any person, rule 35 one says, if necessary by removing any person bound by the decree who refuses to vacate the property. What is it? That is section 74 and order 21 rules 97204. That is relating to that expression by removing any person. Then rule 36, symbolic delivery. What is symbolic delivery? A, obtains a decree against B. Either it can be a decree with respect to immobile property or it may be a money decree. Let us take it that it is an item, it is a decree for recovery of possession of immobile property based on title or for declaration and recovery of possession, et cetera, et cetera, various procedures are brought. And what is that the decree holder has to do after passing the decree? He has to file an execution petition. In the execution petition, he has to pray for delivery of the property. An officer of the court will be appointed. After hearing the respondent and his objections, the court feels that the application is to be allowed. The court will appoint an officer who is called Amin to deliver the property. Amin goes to the property and delivers the property to the decree holder or his nominee. This is the normal procedure. And in the course of such delivery, if a third party obstructs, sometimes the judgmentator himself may obstruct. What should be done? That will be available in rules 97204 of Article 21. We will come to that. Now, what is symbolic delivery? Now, in this case we have seen that there is a decree for recovery of immobile property. Second instance, I gave a simple money decree. How that money decree is to be executed? One of the bonds by attachment and sale of the an item of immobile property which belongs to the judgmentator. That property is proclaimed for sale in public auction by the court. And it can be purchased by home in court auction. Everybody can purchase. Including the decree holder, the only restriction is that under Rule 72 of Article 21, if the decree holder purchases, he has to get the leave of the property. He can also purchase. So, let us take it then. The decree holder in a money decree. After attachment and when the sale takes place of the property belongs to the judgmentator, he himself bid that auction. And he turns out to be the successful bidder. What is that he has to do? He has to get possession of the property. Then only his relief will be complete. He applies for a delivery. That delivery, he has to make the application under Article 134 of the Electoral Act. There is some sort of conclusion with respect to Article 134, which I will deal with if time permits. And then, or it may be a mortgage decree, a charge decree in which case no attachment is required. It can be straight away delivered. How? Delivery, same procedure. There the court auction sale may not be necessary. Sale takes place. And the decree holder himself may purchase. What is the role which is applicable with respect to such decrees where the mortgage decree and the mortgage decree holder himself want to purchase it? Rule 72, Captain A of Article 21. The court has to fix a reserve price which shall not normally be below the decree amount, the amount which is secured by the mortgage. And such safeguards are to be provided so that the property is not snatched out by the decree holder for a song. Now, symbolic delivery. So these two types of decrees I said. Decree for actual delivery of property or the property decree for a career which execution petition will be filed or a suit for money which is put in execution and is purchased either by the decree holder or by a stranger. If it is decree holder's purchaser, he has to get delivery of property. If the stranger purchases, he has to get that stranger has to get delivery of property. Then only the proceeding will be complete. If the stranger purchases, he has to deposit the purchase price before court and out of that amount, the money which is due to the decree holder will be paid if that is sufficient. If it is not sufficient, the balance amount will be recovered in such a manner as may be they fit. If there is something balance left, then that money will be returned to the judgement. If a stranger, if a decree holder purchases, then he has got a right to gets the top. That is suppose the amount which is sought to be recovered by the decree, amount is rupees 10 lakhs. An item of emoll property was brought to say and it was auctioned in court auction and it was purchased by the decree holder himself after getting leave of the court under rule 72, then he purchases for 11 lakhs. He has to get 10 lakhs as his decree amount. He can set off that amount and he need deposit only the balance rupees for that. That one lakh will go to the judgement and return whose property was sold in auction so that the decree is satisfied. In such a case where the property is to be actually delivered, cause possession of the property is to be given. Suppose that property is in the possession of a tenant. Say for example, there is a building in the property which is to be delivered and there are tenants in that building who are protected if it is within certain conditions are satisfied, they will be protected under the rent laws of the different states. Different almost all the states will have rent laws, rent control laws and they will be ended into protection. If the rent control act is not applicable, then they transfer property act is there. And there also the tenant will have his own protection. What is that in what manner the delivery shall take place in such a case? Say for example, I am the decree holder in a decree for payment of money. Property belonging to you, the judge when it was sold in court auction. It was purchased by me, I have to get delivery. One X, Y and Z are the tenants in the building in that property. Can I oust them? No. Why the execution proceeding? I cannot. I have to get delivery by symbolic delivery. Then instead of the judge when it are, I will become the owner. And the tenants X, Y and Z have to pay rent to me. I can file a proceeding under the respective legislation set for the rent control act. Could you just come slightly closer to the mic because people are saying the audibility is slightly lower. Oh, I see. Is it audible now? Sorry, I will ask. They can post it. Now just say two lines, they will come to know. Is it audible now? And the camera, yes, it's audible. And slightly the camera you will have to ship because you have come closer to the camera. Yes, now it's perfect. Now it is all right? Yes, sir. If it is not fully audible, please tell me. No, sir. They have started texting that it's audible. Ah, unless it is audible, there is no point in seeing the video. No, that's true. Ah, yes. I said about the symbolic delivery. I have to get delivery of the property. I am the auction purchaser. I purchased the property in court auction. Then I have to get possession of the property. How to get possession? I have to oust the judgementator by the court proceeding. But in actual position, there are three tenants, X, Y, and Z. Can I oust them and take actual delivery? No. Can the court help me? No. By giving actual delivery, it is not possible. By symbolic delivery, it can be had. Then instead of the judgementator, I will become the owner and I will get the right to collect the rent from you and you will be accountable to me. I will be entitled to take appropriate proceedings under either the rent loss or under the transfer property act to evict you. That is a different matter. If I am entitled to, I will get it, otherwise not. And rule 36 provides for that procedure. Rule 36 says, where a decrease for the delivery of any mobile property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy. The court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property and proclaiming to the occupant by beat of drum or other customary mode at some convenient place, the substance of the decree in regard to the property. That is the order of the court shall be affixed at some conspicuous place on the property and proclaim by beat of drum or by other customary method that so-and-so has purchased the property and delivery of the property by symbolic delivery is being effected so that all concerned are made known that this property has been delivered to the auction purchaser, whether he is decree holder auction purchaser or a stranger auction purchaser, whoever it is, who is to get possession of the property. That is a method under rule 36. Now we'll go to section 74. Section 74, 74 says, resistance to execution. Let us see the wording of section 74. Were the court is satisfied that the holder of a decree for possession of emerald property or that the purchaser of emerald property took categories of persons, holder of a decree for possession or purchaser of emerald property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgementor or some person on his behalf and that such obstruction. Resistance or obstruction was without any just cause. The court may at the instance of the decree holder or purchaser order the judgementor or such other person to be detained in the civil prison. For a term which may extend to 30 days and may further direct that the decree holder or purchaser be put in possession of the property. So in the instance which I have given, either the decree holder has to get possession of the property to whom a decree for possession has been passed or an auction purchaser has to get possession of the property. And in that process of delivery, he is resisted or obstructed by the judgementor or by some person on his behalf who are bound by the decree to await. That means they are defying the orders of the court. They are causing obstruction without any just cause. Then they shall be removed fourth way by putting them in prison for a period not exceeding 30 days. And in the meanwhile without any obstruction, the property can be delivered, everything will be spoke. So the power of the civil court to detain a person. I said about the arrest and detention. There also the court has power to detain a person for realization of money. See the power of the court. It is not only the criminal court which has power. There are various provisions in the court of civil procedure where the court has power to detain a particular person who did not obey the decree or who violated an order of indepth, temporary indepth. All these proceedings are there and the court is always equipped with sufficient power so that the orders passed by the court are obeyed, respected and the result of the decree is obtained, is enjoyed by the rightful claim. Now we will go to the schemes section 74. We have seen 74 is the power from that, from section 74 emanates order 21, rule 35, 36 and order 21 rules 97, 204. Now we have to see from 97 onwards. Order 21, rule 35 and 36 we have seen. Now we have to see, order 21 rules 97, 204. Various changes to place. 97 says resistance or obstruction to possession of immoral property. I'll come back to this. There is 97 an order passed in an application under rule 97 is under rule 98. Please note an order passed under rule 97 in an application under rule 97 is under rule 98. There is a provision for an application for redelivery that is under rule 99 and the order to be passed is under rule 100. So at 97 application an order will be passed under rule 98 and at 99 application the order will be passed under rule 100. What are all the points to be considered by the court? Which is it is contained in rule 101. What is the effect of that order? Rule 103, it shall be deemed to be a decree. An order passed in an execution is not a decree normally but it shall be deemed to be a decree under rule 103. Rule 102 provides that these rules are not applicable to trans-pre-pendentization lighting that we will come to that. These are the provisions. And what change was brought out in 1976? Before 1976, when an application is made either under rule 97 or rule 99 and an order is passed there on. So that will be based on the possession, actual physical possession of the property whether with the claimant or not. See, I will give an example. A suit between A and B, suit is for a career possession of on the base of title of an item of emerald property. Suit is decreed. A has to get possession of the property. The decree is put in execution. While effecting delivery, see who is not a party to the suit causes obstruction. And he says that I am not bound by the decree. I am not a party to the decree. Therefore, you cannot effect delivery. What is that the court officer called Amin should do? He shall report the matter to the court that so and so obstructed delivery. What is that the court has to do? Court has to issue notice to him that obstructors, stranger, see, hear him and pass an order. Either accepting his claim, either accepting his objection or rejecting it. Suppose his objection is rejected. What is that? An order will be passed for removal of obstruction. Can be removed by coercive steps. And going by the latest decision of the Supreme Court, it can be even by affording police aid, but with an order of the court, not directly by the police. All those procedures are provided. Or, and what will happen? What was the position before 1976? Same position, A, B, C. A is the decree holder, B is the judgmentator, decree for recovery of possession of property. And at the time of delivery, see the stranger obstructs. An order is passed by the court under rule 97 for removal of persistence. What is the nature of that order? It is an order in, what was the nature of the order before 1976? It was just an order in execution. Suppose that order is in favor of the stranger, see, what A should do, A can file a suit based on title. So, the question of title was not being inquired into by the court, either in an application under rule 97 or rule 99. What was being inquired into by the court in a proceeding before 1976 was the question of possession. If the court finds that C was in possession under 11, his possession will be protected. And A, who has to get delivery, what is his remedy, he can file a suit. Under which provision? Under the then existing rule 103, which provided for a suit. Same procedure in an application under order 21 rule 58. You are aware that when an attachment is made, any third party who has objection to that such attachment can file a claim or objection under rule 58. Sorry, I have a running nose. A claim or objection can be filed under rule 58. What was the procedure before 1976? The court will inquire whether that claimant was in possession. If it is found that he was in possession, the court will allow the claim. Then what will happen to the attaching creditor? His attachment goes. He can file a suit. He could file a suit for establishing his title under rule 63, which was then in existence. Now rule 63 is not there. It is omitted by the 1976 amendment. So this was the procedure. But after 1976, there is no such two-tier litigation. Everything will be over in the same proceeding. So a decree holder or auction processer who has to get delivery, moves the executing court and delivery is attempted. He is obstructed. Delivery is obstructed by a third party named C. C will be issued notice. The court will hear C subjections. And if the court finds that C subjection is justified, what is the matter which has to be decided by the executing court? Not the question of possession alone. The question of all the questions including the right title and interest of the claimant in the property. And if the court finds that C the stranger is the title holder, the court will allow his objection and dismiss the application for removal of resistance. Or if it is an application for re-delivery, allow that re-delivery. Then what is the right? What is the remedy of the defeated party? Nothing. Only an appeal. So a two-tier litigation, which was the procedure before 1976, has been made a single-tier litigation. So everything will be decided as if it is a suit. C is a stranger. He is not a party to the suit. But he comes in at the fag end at the execution. And then as if he is a party to the suit, the whole thing which he claims will be decided once for all, finally, and that order will operate as a resudicator in any subsequent business. So that once for all, the matter will be decided. That is the importance of the two-tier litigation. Now let us see Rule 97. The wording of it is important. I will read Rule 97. Where the holder of a decree for possession of immoral property or the purchaser of such property is sold in execution of a decree. Two categories of persons, I mentioned. One, the holder of a decree who has to get delivered to the property. Two, the auction purchaser in a court auction who has to get delivered. Either he is a decree holder himself or a stranger. Whoever it is, he has to get possession. So where the holder of a decree for possession of immoral property or the purchaser of any such property sold in execution of a decree is resistant or obstructed by any person and obtaining possession of the property and make an application to the court complaining of such a resistance or obstruction. By reading of Rule 97, what is the impression that you get? A, the decree holder has to get delivery. B is the gentleman at a... When delivery is attempted, see the stranger obstructs. A can file an application for removal of resistance or for advice. That is a plain reading of Rule 97. But over the years, right from 1995, the Supreme Court has interpreted it. Up to date, that is a position. Several decisions. That even C can make an application to adjudicate upon his title in the manner provided in Rule 101 and get a favorable order if he has got a meritorious case. Formerly, several high courts, including the Kerala High Court, had taken the view that see the obstructor can obstruct and then he can approach the executing court only after delivery for preying for re-delivery of the property under Rule 98. That was the view taken by the Kerala High Court and very many other high courts. No anticipatory obstruction petition is maintainable was the view taken so that if A and B colludes and obtains a money decree, A obtains a money decree and that money decree is executed and as if the property belongs to B, the judgmentata, the property is attached and it is sold. Clandestinely, it is purchased by A in the decree holder. C is unaware of all these things. He is the real owner. It is by fraud and collusion between A and B. Such a situation was great. What is the remedy of C? C can, of course, file a suit but which court will stay the execution? C can rush to the court, say that I am the owner, please adjudicate my title and pass appropriate orders. That is the procedure now. But even on the wording of Rule 97 which admits of only an application and the instance of the decree holder or option purchaser that is A and not at the instance of the stranger which the Supreme Court has interpreted even C who abstracts it the delivery and who claims that he is the title holder of the property can straightly approach the executing court and ask please adjudicate. That is the view taken by the Supreme Court. Now let us see Rule 97. Where any application is made under Sub rule 1 the court shall proceed to adjudicate upon the application in accordance with the provisions here in contained. What is the provision here in contained? Rule 101. Then 98. Orders after adjudication. The court will pass order either alleging or such order as in the circumstances. If the court is satisfied that the resistance or obstruction was occasioned without any just cause or other person application or only 10% Why is it breaking at your end? Kindly just check it out. I am just connecting with him. We are unmuting sir. Just unmuting. Yes. Is it audible? Yes sir. Kindly repeat from Rule 98 that is the request made by the participants. Adjudication of an application under Rule 97. Upon determination the question referred to in Rule 101. You will see 101. Straight away. Rule 101 questions to be determined. All questions including questions relating to right title or interest in the property arising between the parties to a proceeding on an application under Rule 97 or 99 or their representative and relevant to the adjudication of the application shall be determined by the court dealing with the application and not by a separate sue. And for this purpose the court shall not be standing in anything contrary containing the other law for the time being enforced. We deem to have jurisdiction to decide such questions. By when C's application is filed or something is moved against C the executing court does not get jurisdiction. And that is why by this procedure not standing in anything containing the court gets jurisdiction to decide the dispute between A and C and act accordingly. And what are the questions to be decided? All questions including the right title and interest to the property and relevant to the adjudication shall be determined in the proceeding and not by a separate sue. That is important. So now we come back to Rule 98 upon determination of the question referred to Rule 101 the court shall make an order allowing the application allowing what application the rule 97 by the decree holder going by the wording of Rule 97 by the decree but if you have the Supreme Court judgment any third party also can but going by the wording here it is provided or either allowing it or dismiss it and sub rule 2 of Rule 98 says that were upon such determination the court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgmentator or by some other person at his investigation or by a transferee which transferee during the pendency of the suit or during the pendency of the execution it shall direct that the applicant be put into possession of the property where the applicant is still resisted or obstructed in obtaining possession the court may also at the instance of the applicant before the judgmentator or any person at his instigating to be detained in civil prison for a term which may extend to 30 days which we have seen in section 74 this is the procedure now what is Rule 99 application let us see were any person other than those mentioned in Rule 98 other than those mentioned in Rule 98 who are they not the judgmentator or by a person instigated by him or by a transferee pending suit or by a transferee pending execution if any person other than any person who does not come under any of these four categories were any person other than those mentioned in Rule 98 is dispossessed of immoral property by the holder of a decree for possession of such property or where such property has been sold in execution of a decree by the purchaser of the wrong he may make an application to the court complaining of such dispossession what is that he obtained a money decree against me in execution of it the property belonging to actually belonging to C was sold as though it is a property which belongs to B the judgmentator either by a collusion or by mistake or by deliberate or by deliberate or non-deliberate say care and caution the property which was sold and sought to be delivered is the property belonging to C then C comes to know it he says to the army no no I am not a part of the proceeding this is not the property of B this is my property C says but the army delivers the property reports the matter to the court and A was put in possession of the property what is the remedy of C C can move the executing court for re-delivery when such application is made what is the court which is expected to do issue notice to all parties then here the case in accordance with the provisions contained rule 101 decide all the points which are mentioned there all the rights including the right title interest in the property in respect of the property shall be decided and pass an order which comes under rule 100 then 99 also says that where such application is made the court shall proceed to adjudicate upon the application in accordance with the provisions here that is rule 101 then rule 100 that is with respect to an application under rule 99 upon determination of the questions referred to rule 101 the court shall in accordance with such determination make an order allowing the application and directing that the applicant be put in possession of the property or dismissing that and if the court finds that no it is not B but C who is the owner of the property was sold and purchased by a the decree holder as if that property belong to B but C is the real order what is the order to be passed under rule 100 put back C possession of the property rule 97 proceeding is before delivery before effecting actual delivery adjudication takes place and orders will be passed according but here fortunately or unfortunately the delivery to place still the adjudication is possible and orders can be passed for delivery 102 makes the provision clear nothing in rules 98 and 100 98 is the order under rule 97 100 is the order under rule 99 shall apply to resistance or obstruction in execution of a decree for the possession of a single property by a person to whom the judge manager has transferred the property after institution suit in which the decree was passed or to the dispossession of such person so these proceedings from 97 to 101 do not apply to a transparent entity he is bound by the decree as A is bound as B is bound C is also bound C said transfer dependent a little from B he is bound by though he was not added as a party additional party and he was not heard by the court while passing the decree need not if I file a suit against you and to defeat my rights you transfer the property to a stranger X transfers to Y should I bleed all those persons not necessary at all if the transfer is hit by the dispendent section 52 of the transfer of property act all these persons X Y and Z will be bound by the decree that is a procedure that is rule 100 and 203 orders to be treated as decree where any application has been adjudicated upon under rule 98 or rule 100 the order made thereon shall have the same force and be subject to the same conditions as to be thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree an order passed by the executing court is not a decree it is only an order but an order an order passed under rule 98 after adjudication in an application under rule 97 or an order passed by the court under rule 100 after adjudicating upon an application under rule 99 these orders shall be treated as decree for the purpose of appeal that is what is provided in rule 103 this was not the position before 1976 that order the procedure is changed instead of a two-tire litigation it is single-tire litigation everything in the execution proceeding itself and the order will have the effect of a decree and once it is decided it becomes final and conclusive and it will operate as restricted as be 104 order under rule 101 or 103 be subject to the result of a pending suit pending on the date of comments under the procedure if some suit is pending between C and B and an order is passed here that will be subject to the result of that suit this is in short the procedure for delivery resistance removal of a resistance or obstruction and the steps to be taken various steps is the procedure now one hour is over I will cite maximum number of decisions for your convenience maximum number of supreme court judgments please carefully read all these judgments so that you will have no doubt at all absolutely no doubt the first case I said in 1995 1995 one SCC 242 Nooruddin Nooruddin N-O-O-R-D-I-D-D-I-N versus Dr. Kail Anand the scheme of the code appears to be to put an end to the protraction of execution proceedings and to shorten the litigation between the parties that is why all these procedures AER 1997 Supreme Court 856 Citation SCC 973 SCC 694 Executing court must first adjudicate upon the objections of the applicant on merits under rule 97-2 red with rule 101 and 98 instead of insisting upon first hearing our possession and then moving the application by the appellate under rule 99 words the person in rule 97 includes such a stranger that is a view taken that was not the view earlier and therefore all the decisions of the various high courts including that of Kerala High Court taking a different view that anticipatory obstruction will not lie and see the stranger if delivery takes place he can only apply for re-delivery and wait for the proceeding in the meantime the possession will be with A that is not good law all those decisions are not good law in view of this to Supreme Court judgments and see in fact I had also noticed in I remember Patmaja versus Sajeem that is the case I have said that all these Kerala decisions are do not hold good in view of the Supreme Court decision Patmaja versus Sajeem I have decided in 2006 please check up 2006 Patmaja versus Sajeem or Sajeem versus Patmaja another decision A year 1996 Supreme Court 2050 Kerala versus Raj Kumar and others that was a decree for specific performance of agreement for sale third party obstructed final objection stating that he should not be dispossessed the executing court dismissed on the ground that application under rule 97 by a stranger is not maintainable going by the wording of rule 97 the application can be made only by the decree holder not by or by auction process not by others and adjudication is required to be conducted under order to do rule 98 before removal of obstruction means the view taken in Babiland's case by the Supreme Court same view was taken in AAR 1996 Supreme Court 2102 2102 and 95 Supreme Court 358 95 Supreme Court 358 also held that there is a wrong practice A has to obtain possession from B the judgment data I mean goes to the property and C says that he is not bound by the decree the property belongs to C I mean comes to the court and file say report to the decree for 30 days the decree holder will not do anything after 30 days after 30 days he may make an application for issuing a fresh one the court without looking into all those things it should use a fresh one and with the assistance of Amin it will be delivered on a day when C is not there so that everything is smooth operation Supreme Court criticized it and once an obstruction is noticed by the court put to the notice of the court what the court has to do is to issue notice to that see the stranger hear him and pass an order under rule 103 as the case may be either 1997 or 1999 then all the Kerala decisions have gone likewise other High Court judgments which take a contrary view also have gone in a recent decision the Supreme Court I saw that one High Court taken a view that decision is also wrong the Supreme Court say then 1997 Supreme Court 8 5 6 3 6 9 4 Supreme Court says that the court cannot bypass such obstruction and insist on reissuance of warrant of possession under order 21 rule 35 with the help of police force it cannot be done without hearing see the obstruction please see Brahmadeva Chaudhary recently in a decision of the Supreme Court the Supreme Court followed Brahmadeva Chaudhary Babu Lalai said please if I repeat please pardon me I will just see say the decisions please note AER 1996 Supreme Court 2102 AER 1995 Supreme Court 358 2000 Volume 10 SCC 405 2002 Volume 7 SCC 2002 Volume 7 SCC 50 1998 3 SCC 7 2003 and AER 1998 Supreme Court 18 2007 all these are decisions on the same point I said about the Padmaja decision which was rented by me Padmaja versus Sajiv that decision you will get in 2006 one Kerala law times 2006 one Kerala law times 265 I have considered all the then available dead men Supreme Court on the point what was the position before CPC amendment of 1976 that is discussed in one Supreme Court that is AER 1998 Supreme Court 98 Supreme Court 2476 which is equivalent citation 98 6 SCC 2000 Ghasi Ram and others versus Chaitram C.H.A.I.T Chaitram Saini and others first read this judgment if you read this judgment first then you will understand what is the aspect you changed brought out in 1976 then read the other judgment if I am repeating it please pardon me 968 SCC 372 968 SCC 372 Ghasi Akhil Ahmad Ghasi Akhil Ahmad versus Abraheem 2002 Volume 9 SCC 554 Prashant Banerjee versus Pushpa Ashok Chandani there is a division when the decision of the Kerala High Court by Justice P.K. Boris Brunium who later became a judge of the Supreme Court 2001 3 K.L.T 2001 3 K.L.T 117 Ittia Chen versus Tommy I do not know whether there is any parallel A.R. citation I will check up yes A.R. 2002 Kerala 5 A.R. 2002 page 5 parallel citation please read what is the change after the amendment after the amendment of the court in the year 1976 mere possession by the claimant would not be sufficient the claimant is also to show a right to possession independent of the judge see the difference please note some of the later decisions 2007 5 SCC 2007 5 SCC 745 B. Arvind Kumar versus Government of India and others a beautiful discussion is there you will get all the relevant details there please read what is the scope of certificate of sale whether it is a document of title or it is only evidence of title and Justice Arvira Vithran in that judgment says that is evidence of that in one earlier judgment the Supreme Court to be council decision 1920s held that is documented 2007 5 SCC 745 then 1995 3 SCC 252 P Udayani Devi versus V. V. Rajeshwara Prasad then 2009 10 SCC 236 corresponding AER citation AER 2019 Supreme Court 5370 Om Prakash and another versus Amar Singh and another that is police assistance how police assistance should be ordered if necessary by removing the obstruction and Justice Naveen Sinha who wrote that judgment said police cannot straight away jump into action and remove all these things there must be a court order an application should be made by the court to the court the court shall consider the request and if the court orders the police to give assistance then only it should be given next 2015 1 SCC 379 Parallel Citation is AER 2015 Supreme Court 591 Sameer Singh and another versus Abdul Ram and others next 2012 3 Kerala High Court Cases 377 Parallel Citation 2012 3 KLT 2012 3 597 Sivaraman AK versus KV Narendra Nadan and others that was AK I cited that Kerala decision because I could not find any Supreme Court decision on that point Execution Obstruction by a third person that third person files an application under rule 97 Decree Holder died in the meanwhile Decree Holder died in the meanwhile the question was the proceedings whether the proceedings would have reached it was held that on the death of the party to the proceeding in an application under rule 97 there would be no abatement and rule 12 of order 22 will apply rule 12 of order 22 will apply there is a discussion on why it applies because of positive time I am not reading it paragraph 10 in that judgment you will get that discussion next 2003 12 SCC 219 Parallel Citation AER 2004 Supreme Court 511 Aashan Devi and another versus Fulvasi Devi and others it was a suit for a specific performance of an agreement for sale suit was filed for a specific performance it was decreed even before the suit was filed and after the date of the agreement the property was sold by the defendant to a few strangers they were not made parties they caused obstruction what will happen they courts below did not properly consider it the Supreme Court posed the questions to be considered and referred the matter to the High Court again and the court said what are the questions to be decided yes next 2011 15 SCC 2011 15 SCC 2017 Haru Vilas versus Mahendra Nath and others Haru Vilas versus Mahendra Nath and others Rule 97 what is the change brought out was also discussed Parallel to A3 Tansim E.Sufia Tansim E.Sufia versus B.B. Haliman Prem Dev Chaudhary's case which I said 95 was followed here then 2002 1 SCC 662 Parallel citation AAR 2002 Supreme Court 251 NSS Narayana Sharma and others NSS Narayana Sharma and others versus Goldstone Exports Private Limited the next 2000 10 SCC 405 Anwar B versus Pramod D.A. Joshi Pramod D.A. Joshi and others next 1998 4 SCC 543 Parallel Citation AAR 1998 Supreme Court 1827 Sridharth versus Rajesh Again discussion what is here in paragraph 12 there is a beautiful discussion what was the change brought out in Avaliman and the consequence of the siege and in paragraph 14 it was also found we find both either under the old law and the present law or the present law when a tenant or any person claiming right on his own or the property in a case his objection under rule 97 has to be decided by the executive court itself even before amendment that was the position when a tenant who is not bound by the decree who has got independent right he can put forward his claim whether it is before 1976 or after 1976 the positions these are all in short the decisions which you may go through the provisions which you may go through the provisions very very carefully word by word you may refer to and also the decisions on that point and be a master in execution in execution your role as an effective lawyer becomes important whether you are appearing for the decree holder particularly or whether for the judgment or abstract the rights suppose a lawyer is approached either by a decree holder it has gone something has come on my screen yes all these things come now so whoever when a litigant approaches the decree holder or a or a stranger approaches the law he has to be given the correct advice what is the law on the point what are all the conditions he can take and give a proper advice lead him correctly put forward your arguments effectively in court wherever help is necessary for the party provide that help sometimes because of the laxity on the part of the lawyer valuable rights to the parties should not be lost that is the most important most important is because of your negligence your party should not lose so that what is a law on the point what are the decisions on the point all these things you must be aware of course in recent times it is not necessary to have any book but you can search otherwise but there is no substitute for reading you have to assimilate all those things first of all read the provisions any law, any statute whenever you approach a statute CPC many young lawyers complain to me that it is very difficult for them and how to approach it so it is there is no point in reading from section 1 to the end that will not take you anywhere first of all we have to see how CPC is arranged what are the connections between the various provisions now I said 51 is connected with this likewise there are different various connections first of all see the cracks of the matter first of all we have to read the various provisions of the CPC understand it nobody can remember all these things nobody the only thing that is possible is that you must be able to locate at the correct place it must come to your mind that there is some provision you will search for if a party dies what is the provision to be searched if a party approaches you I have no money to pay code fee which is the provision to be looked into order 33 if it is an appeal by an indigent person order 44 if it is a mortgage suit order 34 if it is a temporary injunction order 39 attachment before judgment order 30 these are all the provisions which must come to my come to our mind by constant reading we must be able to locate but by just looking at the index of CPC we must be able to locate it then there is no difficulty it is very easy so there is no room for any complaint that CPC is a is an uphill task nobody will understand what it is it is your friend friend in me so thank you very much thank you Mr. with us also for providing an opportunity to address these pleasure is all asked that having a knowledge during the lockdown and that too as we keep on repeating that the impact what the one gets by hearing the visual impact is always better than what what is written so we will take the questions so what is the similarity or the subtle difference between section 47 and order 21 rule 97 47 says that all questions arising between the parties to be proceedings in execution shall be decided by the executing court and not by a surprise all questions relating to execution discharge or satisfaction of the decree shall be decided by the executing court that is the general provision knows who will lie in respect of and who is a party who is a representative see the wording of section 47 questions to be determined by the court executing the decree all questions arising between the parties to be suited with the decree was passed or their representatives and relating to execution discharge or satisfaction of the decree shall be determined by the court executing the decree and not by a separate suit this is the mandate of section 47 who is a representative that question also will be decided by the executing court and not by a separate suit explanation 1 plainly for suit 2 has been dispatched and a dependent against them suit has been decreed or parties to be suited then explanation 2 a purchaser of property at a certain execution of decree shall be deemed to be a party to be suited so a purchaser has to get delivery he shall be deemed to be a party he has to get possession of the property so all those questions also will be decided by the executing court and not by a separate suit all questions relating to delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to execution discharge or satisfaction this is the provision the question is very important so that I got an opportunity to tell section 47 also so this also underwent change in 1976 once you are taking that question I will just relate because it will be contingent upon the answer what you are trying to give if you can see the chat but though I will also read it that is by Rahul Arora are you able to see the chat on the right side right side Rahul Arora has put a question I can read it for you otherwise is the substituted rule in 1976 with respect to order 21 rule 97 empowers the executing court as that of the appellate court which is not the intent of the legislature under section 47 of the CPC I did not understand the question I did not get it I will unmute Rahul Arora Yes Mr Rahul Arora Good evening sir Good evening My question to you is as you have apprised us about the single tire system that after 1976 there is one system there is no appellate powers remaining with us right now we have to go for the single tire system as per the 1976 amendment there is a correction appellate power is there Okay sir I will explain it again that is the question Yes sir I will explain it again just before 1976 if at the time of delivery a third party causes obstruction he will be heard on what question on the question of his right to on the question of his possession not on the right to possession whether he was in possession and if he was found in possession his possession will be protected and an order will be passed accordingly the defeated party could file a suit under rule 103 to establish his title and get an order till then he will not get possession now after 1976 if a third party claims something he obstructs he comes to the court or he is dispossessed he complains of such dispossession all the question relating to right title and interest of the parties will be determined in the same execution proceeding and not by a separate suit and not only the question of possession the title also will be looked into and once for all a final and conclusive decision will be taken which is deemed to be a decree under rule 103 for the purpose of appeal so that single tyre I said not separate suit appeal is provided appeal is provided there is no bar but otherwise before 1976 the defeated party has to file a suit then what will happen to the execution proceeding this will also drag on how many years whereas this is in the same proceedings so it is convenient it avoids dragging of litigation protraction of litigation wastage of judicial type expenses and time of the litigants people will have more faith in this yes thank you thank you sir we have been invariably seeing the word resistance or obstruction in all these provisions of order 21 so what is the basic difference between resistance or an obstruction because invariably one carries the same image that resistance is somewhat a synonym of obstruction as such resistance and obstruction say resistance to delivery say judge monitor resist he has to assist delivery he is bound by the decree he resists a third party is not resisting he is obstructing that is the difference because if we read order 21 to 20 order 21 itself you do not come to know that from where do we derive the difference between the resistance and obstruction few persons have asked this question how right to information act 2005 is connected with code of civil procedure is there any connection that question is not very clear that is what I was thinking because RTI the intent and purpose of RTI is entirely different and CPC is entirely different probably the question I can ask if she wants to get it I can so that she can put the question I expect that the question which is put by the person is in a proceeding under the RTI act whether the procedure provided in the CPC will that may be the doubt my answer is I am not in a position to give a correct answer now but you may work up the position in section 141 section 141 miscellaneous proceedings the procedure provided in this code in regard to suits shall be followed as far as it can be applicable in all proceedings in any court of civil jurisdiction explanation in this section the expression proceeding includes proceedings under order 9 but does not include a proceeding under RTI to do this otherwise it is only applicable to the proceedings the CPC the provision may not as such apply to RTI act RTI act procedure thereon is separate sometimes it may overlap sometimes the same something akin to this may be that is what I understand I am not claiming that this is a correct answer I do not know I may say yes we have an advocate canon we will unmute advocate canon once you read canon then it is just rings we have unmuted canon good evening lordship lordship my question is whether a criminal action can be taken against lordship if you want to say yes sir our lordship business has got yes my question is whether a criminal action can be taken against the obstrector under section 183 of IPC whether he can be penalized under section 183 of IPC 183 of IPC what is the wording of 183 I do not have IPC with me now just one minute one minute one minute 183 of IPC resistance to the taking of property by the lawful authority of a public servant where officers whoever offers senior assistance to the taking of the property by the lawful authority of a public servant knowing or having reason to believe that he is such public servant shall be punished with imprisonment of either description for a term which may take 6 months of course when amin is obstracted he is beaten black and blue action can be taken yes ok sir thank you sir sir last question we will be taking whether the property is sold in a court action can be challenged by way of separate suit court auction whether it can be challenged yes my answer is this I will give an example A file a suit for money against B the property of C put in auction in execution as if that property belong to B the jetman C is unaware of it he need not obstract he need not come to the court he need not even apply for re-deliver he can file a suit nothing bars that is why hand rule 104 of order 21 says pending suits will be saved yes sir that are the questions and as on the previous session also we said and the fact that today the insights of order 21 it has opened new ways to the issues which are invariably in the minds because as I initially said at the start of the session that it is easier to get a decree but the execution is much tougher because they say once it goes to the lawyer's creates has his own ways to find a way that the decree is not executed so the session as usual like the previous one on the rest of the gate and that it was an engaging session again the session is very engaging and once you have a good person giving insights that it is never the rest of the gate are that we have been hearing and he's barred from giving expressions the other his expressions are always latched upon well and people actually enjoy it that is why on the whatsapp normally we get people that sell that such person should be again requested so that his insights because cpc itself is a voluminous and the judgments flowing out of that are again correlated which are very difficult to understand unless you get a good mentor good teacher or a good person who can explain. So thank you for the wonderful session I on behalf of Beyond Law CLC and ULS Punjabi University Chandigarh thank you for giving us insights we are also thankful to the participants who have participated on this session as well as on the facebook since we were live with the session everyone stay blessed and stay safe since as we are all finding that the reason but be that as it may once we are safe and especially safe with the knowledge that gives up the new impetus thank you everyone thank you thank you one thing this lockdown has brought us here several webinars are there at the same time there is one going on in Calcutta I am expected to be there but I said sorry I have given a word now those who are interested I have already released 82 episodes on CPCC it was intended for law students but there was request from lawyers as well therefore after completing the limitation act I will redo it I will take various portions of the CPCC that will be more than 100 episodes of half an hour now 82 episodes on CPCC has been released and 6 or 7 8 episodes of limitation act every day 1 SP will be released even today I have released one you will get it just www.justicekatishangaran.com youtube you will get it I have also developed an app stroke app or something like that download that everything at the click of the button if it is useful make use of it I will be more happy everything is free it can be accessed by anybody no restriction yes thank you very much thank you I am happy that I could address young lawyers belonging to various places in India at the same platform and I once again thank Mr. Vigas and his team a wonderful opportunity to interact thank you that is also an application because you are on the youtube channel that I have seen I have been seeing that you have created an application also pardon you have created an application also yes I have created an app also the app is also named KT Sankaran I will just say one minute one minute app is sttp colon double stroke www sttp is not necessary even without that you will get it www.justicektsankaran .com so that is a website and stroke cpc and stroke la for limitation for limitation small letters sir I will have that from you after the session sir I will send it now itself to you right sir thank you