| Content Provider | Supreme Court of India |
|---|---|
| e-ISSN | 30484839 |
| Language | English |
| Access Restriction | NDLI |
| Subject Keyword | Code of Civil Procedure |
| Content Type | Text |
| Resource Type | Law Judgement |
| Jurisdiction | India |
| Act(s) Referred | Code of Civil Procedure, 1908 (5 of 1908) |
| Case(s) Referred | Referred Case 0 Referred Case 1 Referred Case 2 |
| Case Type | Appeal |
| Court | Supreme Court of India |
| Disposal Nature | Appeal Allowed |
| Headnote | Issue for consideration: The question for consideration was whetherthe High Court was justifi ed in upholding the order of the ExecutingCourt holding that the decree for possession of immovable property is notexecutable against the judgement debtor, merely because the decree-holderlost possession to an encroacher.Code of Civil Procedure, 1908 – Ord. XXI rr 97 to 101 – Executionof judgment and orders – Executing Court holding an execution decreeas inexecutable, on the ground that the decree-holder lost possession toan encroacher – Correctness of:Held: Executing Court could not have dismissed the execution petitionby treating the decree to be inexecutable merely on the basis that the decreeholderlost possession to a third party/encroacher – If this is allowed, everyjudgment-debtor in possession of the immoveable property till the decreeis passed, would hand over possession to a third party to defeat the decreeholder’sright and entitlement and this would continue indefi nitely and nodecree for immovable property can be executed – It was the duty of theExecuting Court to issue warrant of possession for eff ecting physical deliveryof the suit land to the decree-holder in terms of suit schedule property andif any resistance was off ered by any stranger to the decree, the same beadjudicated upon in accordance with rr. 97 to 101 of Ord. XXI – On facts, no resistance off ered by any purported stranger/encroacher to the decree –In the absence thereof, the Executing Court had no occasion to invoke Ord.XXI, rr 97 to 101, at the instance of the decree-holder – Executing Courtcould not have closed the execution proceedings holding that the decree isinexecutable – Thus, the orders passed by the High Court and the ExecutingCourt set aside – Issuance of direction to the Executing Court to executethe decree by eff ecting delivery of physical vacant possession to the decreeholder.[Paras 10, 15 and 16] |
| Judge | Hon'ble Mr. Justice Prashant Kumar Mishra |
| Neutral Citation | 2023 INSC 764 |
| Petitioner | Smt. Ved Kumari (dead Through Her Legal Representative) Dr. Vijay Agarwal |
| Respondent | Municipal Corporation Of Delhi Through Its Commissioner |
| SCR | [2023] 11 S.C.R. 602 |
| Judgement Date | 2023-08-24 |
| Case Number | 5409-5410 |
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