Resistance to Delivery of Possession

Three consequences follow, and each is worth a sentence in an answer.

Questions of title are decided in execution. The executing court would normally have no business going behind the decree, as [Questions to be Determined by the Executing Court] explains for section 47. Rule 101 is an express exception.

No separate suit. The rule says so in terms.

Jurisdiction is conferred by deeming. A court that would otherwise lack pecuniary or subject-matter competence to try a title dispute is deemed to have it for this purpose.

The orders: Rules 98 and 100

Rule 98(1): upon determining the questions referred to in Rule 101, the Court shall, subject to sub-rule (2), either allow the application and direct that the applicant be put into possession, or dismiss the application, or pass such other order as in the circumstances it may deem fit.

Rule 98(2) is the sanction. Where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by:

• the judgment-debtor, or
• some other person at his instigation or on his behalf, or
• any transferee, where the transfer was made during the pendency of the suit or the execution proceeding,

it shall direct that the applicant be put into possession; and where the applicant is still resisted or obstructed, the Court may, at his instance, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.

Rule 100 is the corresponding provision on a Rule 99 application: on determining the Rule 101 questions the Court shall allow the application and direct that the applicant be put back into possession, or dismiss it, or pass such other order as it deems fit.

The transferee pendente lite: Rule 102

Rule 102: nothing in Rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed, or to the dispossession of any such person.

The Explanation: in this rule, "transfer" includes a transfer by operation of law.

This is the doctrine of lis pendens doing its work in execution. A person who bought from the judgment-debtor after the suit began takes subject to the result, so he gets no protection from these rules. Note that Rule 98(2) already names such a transferee as someone whose obstruction is without just cause.

The status of the order: Rules 103, 104 and 106

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

That single rule is what makes the procedure a real substitute for a suit. The order is treated as a decree, so it is appealable as a decree and it binds like one.

Rule 104: every order under Rule 101 or Rule 103 is subject to the result of any suit that may be pending on the date of commencement of the proceeding in which the order is made, if in that suit the party against whom the order was made has sought to establish a right to the present possession of the property.

Rule 106 allows an applicant or opponent against whom an order is made ex parte under these rules to apply to set it aside, in the terms and within the time the rule provides.

The limitation periods

The Schedule to the Limitation Act supplies three Articles that belong to this chapter, and they are easy marks in a problem question. See [The Schedule: How to Find a Period of Limitation].

Thirty days is short. A decree-holder who is turned away at the door and does nothing for two months has a limitation problem before he has a possession problem.

A worked example

Bhavesh holds a decree for possession of a flat against Chetan. He goes with the bailiff and finds Deepak in occupation, who refuses to move, saying the decree is not against him.

What does Bhavesh do? Rule 97(1): he applies to the executing court complaining of the resistance or obstruction. He does not file a fresh suit.

Must the court entertain it? Yes. Rule 97(2): the Court shall proceed to adjudicate upon the application.

Deepak says he owns the flat. Rule 101: all questions, including questions of right, title or interest, arising between the parties and relevant to the adjudication shall be determined by that Court and not by a separate suit, and the Court is deemed to have jurisdiction to decide them.

By when must Bhavesh apply? Article 129 of the Schedule: thirty days from the date of the resistance or obstruction.

The court finds Deepak was put there by Chetan to keep Bhavesh out. Rule 98(2): the resistance was without just cause by a person acting on the judgment-debtor's behalf, so the Court shall direct that Bhavesh be put into possession; and if he is still obstructed, the Court may order Chetan, or the person acting on his behalf, to be detained in the civil prison for up to thirty days.

Deepak bought the flat from Chetan after Bhavesh filed the suit. Rule 102: Rules 98 and 100 do not apply to a transferee pendente lite, and the Explanation extends "transfer" to a transfer by operation of law.

Deepak wants to appeal. Rule 103: an order adjudicated under Rule 98 or Rule 100 has the same force and is subject to the same conditions as to appeal as if it were a decree.

Turn the facts round. Suppose Deepak was a genuine stranger with his own tenancy, and the bailiff threw him out anyway. Rule 99: he applies complaining of the dispossession; Rule 101 governs what is decided; Rule 100 allows the Court to put him back into possession; and Article 128 gives him thirty days from the date of the dispossession.

Deepak's own suit for a declaration of title was already pending when Bhavesh applied. Rule 104: the order is subject to the result of that suit.

The order against Deepak was passed ex parte. Rule 106 lets him apply to have it set aside.

What it does not mean

The decree-holder is not sent away to file a suit. Rules 97(2) and 101 keep it in execution.

Rule 101 is not confined to procedural questions. It expressly includes right, title or interest.

Rule 97 is not for the decree-holder alone. An auction purchaser may use it.

Detention is not automatic. Rule 98(2) requires resistance without just cause by the judgment-debtor or someone on his behalf, and a continuing obstruction.

A transferee pendente lite gets no protection. Rule 102.

The order is not a mere execution order. Rule 103 gives it the force of a decree.

Quick revision

Rule 97: a decree-holder or auction purchaser resisted or obstructed in obtaining possession applies to the executing court, which shall adjudicate. Rule 99: a person other than the judgment-debtor who has been dispossessed applies, and the Court shall adjudicate. Rule 101: all questions, including right, title and interest, are decided by that Court and not by a separate suit, the Court being deemed to have jurisdiction. Rule 98: order allowing or dismissing the application; and where the obstruction was without just cause by the judgment-debtor, someone on his behalf, or a transferee pendente lite, the applicant shall be put in possession and the obstructor may be detained in the civil prison up to thirty days. Rule 100: the corresponding order on a Rule 99 application, putting the applicant back into possession. Rule 102: Rules 98 and 100 do not apply to a transferee pendente lite; "transfer" includes transfer by operation of law. Rule 103: the order has the force of a decree. Rule 104: subject to a pending suit. Rule 106: an ex parte order may be set aside. Limitation: Article 129, thirty days from the resistance; Article 128, thirty days from the dispossession; Article 134, one year from when the sale becomes absolute.

Test yourself

1. A decree-holder is obstructed when taking possession. What is his remedy? Under Order XXI Rule 97(1) he may apply to the executing court complaining of the resistance or obstruction, and by Rule 97(2) the Court shall proceed to adjudicate upon the application. The same remedy is available to a purchaser of the property at a sale in execution.

2. Can the executing court decide a question of title in such a proceeding? Yes. Order XXI Rule 101 provides that all questions, including questions relating to right, title or interest in the property, arising between the parties to a proceeding under Rule 97 or Rule 99 and relevant to the adjudication, shall be determined by the Court dealing with the application and not by a separate suit, and that the Court shall be deemed to have jurisdiction to decide them notwithstanding anything to the contrary in any other law.

3. What order may the court pass where the obstruction was without just cause? Under Rule 98(2), where the resistance or obstruction was occasioned without just cause by the judgment-debtor, by a person at his instigation or on his behalf, or by a transferee during the pendency of the suit or execution proceeding, the Court shall direct that the applicant be put into possession; and where he is still resisted, the Court may order the judgment-debtor or the person acting on his behalf to be detained in the civil prison for a term which may extend to thirty days.

4. What is the remedy of a stranger dispossessed under such a decree? Under Rule 99 he may apply complaining of the dispossession, the Court shall adjudicate upon it, the questions are determined under Rule 101, and under Rule 100 the Court may allow the application and direct that he be put back into possession.

5. Does a person who bought from the judgment-debtor during the suit get the benefit of these rules? No. Rule 102 provides that nothing in Rules 98 and 100 applies to resistance or obstruction by a person to whom the judgment-debtor transferred the property after the institution of the suit in which the decree was passed, or to the dispossession of such a person. The Explanation adds that "transfer" includes a transfer by operation of law.

6. What is the status of the order made on such an application? Under Rule 103 an order adjudicated upon under Rule 98 or Rule 100 has the same force, and is subject to the same conditions as to an appeal or otherwise, as if it were a decree. It is subject under Rule 104 to the result of any suit pending when the proceeding commenced in which the party against whom it was made sought to establish a right to present possession.

7. What is the period of limitation for these applications? Thirty days under Article 129 of the Schedule for possession after removing resistance or obstruction, running from the date of the resistance or obstruction; and thirty days under Article 128 for possession by one dispossessed, running from the date of the dispossession. Article 134 gives a purchaser at an execution sale one year for delivery of possession, from when the sale becomes absolute.