Summary
The Supreme Court upheld a remand of re-delivery applications under Order XXI Rule 99 CPC. A stranger to a partition decree, including a pendente lite transferee who was not impleaded, may apply under that rule after being dispossessed in execution. Time to execute a partition decree under Article 136 of the Limitation Act runs from the date of the final decree, not from its later engrossment on stamp paper.
Issues
- Whether a pendente lite transferee who was not a party to the suit and was dispossessed in execution can apply for re-delivery under Order XXI Rule 99 CPC.
- Whether limitation for executing a partition decree under Article 136 of the Limitation Act runs from the date of the final decree or from its engrossment on stamp paper.
- Whether the High Court was right to set aside the dismissal of the re-delivery and damages applications and remand the matter.
Provisions considered
- Order XXI Rule 99, Code of Civil Procedure, 1908The rule lets any person other than the judgment-debtor who is dispossessed by the decree-holder complain to the executing court. The respondents' predecessor was not a party to the suit and was dispossessed in execution, so he could pursue his claim of independent title under this rule. A pendente lite transferee who was not impleaded counts as such a stranger. (¶¶ 13, 14, 15, 16)
- Order XXI Rule 97, Code of Civil Procedure, 1908Because the respondents' predecessor had resisted delivery earlier, the decree-holders should have impleaded him through an application under this rule. Following Sriram Housing Finance, the Court noted that only a decree-holder may apply under Rule 97. (¶¶ 15, 16)
- Order XXI Rule 101, Code of Civil Procedure, 1908Once an application under Rule 99 is filed, the executing court must decide all rival claims, including right, title and interest, since the rule bars a separate suit. (¶ 16)
- Article 136, Limitation Act, 1963Following Chiranji Lal, which was approved by the Constitution Bench in the arbitration-stamping reference, the twelve-year period for executing a partition decree runs from the date of the final decree. Engrossment on stamp paper relates back to that date and does not postpone limitation. The final decree here was dated 09.03.1970 and the execution petition was filed in 1991. (¶¶ 9, 11, 17, 18, 19)
Held
- Under Order XXI Rule 99 CPC, a person who is not a party to the decree and is dispossessed of immovable property in execution may approach the executing court even after dispossession and have his claim of independent right, title and interest decided. (¶ 14)
- A pendente lite transferee who has not been impleaded is a stranger to the suit and may seek re-delivery under Rule 99. A transfer pendente lite is not void; the transferee's rights are subject to the outcome of the suit, and he is entitled to defend his title and possession (following Yogesh Goyanka v. Govind). (¶ 15)
- On an application under Rule 99, the executing court must decide all questions of right, title and interest between the parties under Order XXI Rule 101, which bars a separate suit. (¶ 16)
- Limitation for executing a partition decree under Article 136 of the Limitation Act starts on the date of the final decree. Engrossment on stamp paper relates back to that date, and a party cannot delay limitation by choosing when to furnish stamp paper, even where the decree contains no direction to furnish it. (¶¶ 11, 17, 18)
- The High Court correctly applied Chiranji Lal in setting aside the executing court's order and remanding the matter for fresh consideration of all issues, including the respondents' claim of independent title. (¶ 19)
Result
Civil appeals dismissed; High Court's remand to the trial court upheld; appellants free to raise all available contentions before the trial court.