Order XXI Rule 101 CPC - Question Of Title To Be Adjudicated By Executing Court Even If Separate Suit Pending On The Question

Advocate Mr. Ankur S. Kulkarni appeared for the Appellant during the proceedings before the Court.

An appeal was preferred by the Bangalore Development Authority before the Supreme Court assailing the judgment of the Karnataka High Court which had dismissed the Writ Petitions of BDA-Appellant and confirmed the order passed by the Executing Court. The Executing Court had dismissed the applications filed by BDA under Order XXI Rule 97 in CPC in an Execution Case filed by Respondent No. 1 (Decree Holder) against Respondent No. 2 (Judgment Debtor).

In this case, after a period of 17 years of the land being vested with BDA-Appellant, Respondent No.1 entered into an agreement of lease with Respondent No. 2 for a part of the land in question. This was followed by Respondent No. 1 filing a case against Respondent No. 2 for ejectment in a City Civil Court. However, in this case, Appellant-BDA was not arrayed as a party to the suit. The suit was dismissed by the Trial Court.

On appeal, the High Court allowed the appeal of First Respondent and decreed the suit consequently. Thereafter, the First Respondent filed Execution Petition. The Appellant then filed suit and sought that the lease agreement between the two Respondents be declared null and void and also prayed for a permanent injunction.

The applications filed by BDA under Order XXI Rule 97 read with Section 151 CPC in execution proceedings for impleadment and for deferring the proceedings came to be dismissed by the Executing Court. The Court had observed that BDA had no material to show that pursuant to the acquisition, BDA had taken possession of the land and hence, BDA cannot obstruct or object to the execution of the decree passed by the Court.

The Appellant contended before the Supreme Court that for raising the objection to the decree which was sought to be executed, the obstructor need not be in possession with respect to the suit property.

Further, it was argued that the Executing Court ought to have allowed the impleadment application of the Appellant-BDA which claimed the title on the basis of acquisition of land under the Land Acquisition Act.

The Apex Court after referring to Order XXI Rule 101 CPC observed, "As per Order XXI Rule 101 CPC, all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Order XXI rule 97 or rule 99 CPC and relevant to the adjudication of the application shall have to be determined by the Court dealing with the application. For that a separate suit is not required to be filed."

Further, the Bench opined that the applications submitted by BDA for impleadment in the execution proceedings and the obstruction against handing over the possession to the decree-holder were required to be adjudicated upon by Executing Court by impleading BDA as a party to execution proceedings.

The Court held that the pendency of the suit filed by the Appellant will not be an impediment in adjudication under Order XXI Rule 101. The Court held, "Though, in the present case, a substantive suit being O.S. No. 2070/2013 filed by the BDA against the decree holder and the judgment debtor to declare the lease agreement as null and void is pending, irrespective of the same, considering Order XXI Rule 101 CPC, the question relating to right, title or interest of the BDA in the suit property was required to be adjudicated upon by the Executing Court". 

Accordingly, the Court allowed the appeal and set aside and quashed the impugned judgment of the High Court. The Court also directed the Executing Court to implead BDA-Appellant in the execution petition and thereafter adjudicate upon the objections raised by BDA in the suit land on the basis of acquisition of the suit property/ land acquired under the Land Acquisition Act.

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