Case Background
This case arises from a long-running eviction dispute that started in 1987. One Sachchidanand Bhagat filed Title Eviction Suit No. 30 of 1987 against his brother, defendant Atmanand Prasad, regarding a property at Mauza Bakhtiyarpur, district Saharsa.
The suit was decreed in favour of Sachchidanand Bhagat on 22.09.1989. The defendant challenged this by filing Title Appeal No. 17 of 1989, which was dismissed on 07.04.1999. A Second Appeal No. 255 of 1999 was then filed and also dismissed. A Special Leave Petition (Civil) CC 1358-1359/2008 before the Supreme Court was likewise dismissed on 04.02.2008.
After the decree became final, Execution Case No. 02 of 2001 was filed by the decree holder, represented by respondent no. 1, for delivery of possession of the decretal property. The judgment debtors in the execution were the legal representatives of the original defendant, Atmanand Prasad, who are respondent nos. 2 to 11.
The petitioners in the present civil miscellaneous case, Nawal Kishore Bhagat and Uday Kumar Bhagat, are grandsons of Sachchidanand Bhagat through his first wife, according to their own claim. They say there was a family partition between the heirs of Sachchidanand’s two wives, and that 1.5 decimals out of 3 decimals of the suit property, along with a house, fell to their share, in which they are in possession.
They allege that respondent no. 1, Ratan Kumar Bhagat (son of Sachchidanand from his second wife) and the judgment debtor side colluded to keep them and another daughter, Mangali Devi, out of the execution case. They say they were not made parties in Execution Case No. 02 of 2001, even though their rights would be affected.
On 27.07.2022, the petitioners filed an objection before the executing court, under Order XXI Rules 97, 100, 104 read with Section 151 of the Code of Civil Procedure. They asked that their right, title and possession over their alleged 1.5 decimal share be decided first, before proceeding with delivery of possession.
Respondent no. 1 opposed this by filing a rejoinder on 26.08.2022, stating that the application was a tactic to deny the decree holder the fruits of the decree. On 22.12.2023, the Munsif, Simri Bakhtiyarpur, Saharsa, dismissed the petitioners’ application in limine (at the threshold), without registering a separate miscellaneous case.
Aggrieved by this order of 22.12.2023 in Title Execution Case No. 02 of 2001, the petitioners approached the Patna High Court in Civil Miscellaneous Jurisdiction No. 243 of 2024.
What the Court Examined and Decided
The Patna High Court, through Hon’ble Mr. Justice Arun Kumar Jha, examined whether the executing court was right in summarily rejecting the petitioners’ objection under Order XXI Rules 97, 100, 104 CPC without a detailed enquiry and without treating it as a separate miscellaneous case.
On behalf of the petitioners, it was argued that:
They are in possession of half of the decretal property, i.e., 1.5 decimals out of 3 decimals, by virtue of a family partition. They say their share lies on the northern side, with a pucca house and mud house in their use.
They contended that any person in possession of the decretal property, if they object to execution, is entitled to approach the executing court under Order XXI Rule 97 of the CPC. According to them, such an application must be registered as a miscellaneous case under Rule 459 of the Civil Courts Rules of the Patna High Court, and decided following the procedure of a suit as per Section 141 CPC.
They further argued that under Order XXI Rule 101, every question relating to right, title, interest and possession raised in such objection has to be decided in the same execution proceedings and no separate suit is to be entertained. They claimed the trial court wrongly directed them to file a separate suit by treating their claim as a claim for share in decretal property rather than a plea to protect existing possession.
To support their case, the petitioners relied on several Supreme Court decisions, including:
- Shamsher Singh v. Lt Col Nahar Singh, (2019) 17 SCC 279, where it was held that all questions relating to right, title and interest have to be determined by the executing court on an application under Order XXI Rule 97 or Rule 99.
- Jini Dhanrajgir v. Shibu Mathew, (2023) 20 SCC 76, relying on Silverline Forum Pvt. Ltd. v. Rajiv Trust, (1998) 3 SCC 723, to argue that Order XXI Rules 97 to 106 are intended to deal with every sort of resistance or obstruction by any person, and that the court must adjudicate such complaints.
- Ashan Devi v. Phulwasi Devi, (2004) AIR (SC) 511, to contend that dispossession does not require physical presence; constructive possession also counts.
- Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal, (1997) 3 SCC 694, to show that third parties resisting execution can seek adjudication of their rights under Order XXI Rule 97.
- Bhanwar Lal v. Satyanarain, (1995) 1 SCC 6, to argue that “any person,” including even a judgment debtor, can be an objector under Order XXI Rule 97, and the court must enquire into the legality of obstruction.
On the other hand, respondent no. 1 argued that:
The petitioners are imposters who never appeared in any stage of the suit, appeal, second appeal, review or SLP, from 1987 till 2008. They are not family members of the original plaintiff, Sachchidanand Bhagat.
Reference was made to a petition dated 02.12.1994 filed in Title Appeal No. 17 of 1989 by the original defendant, who was the brother of the plaintiff. In that petition, it was stated that only Ratan Kumar Bhagat (respondent no. 1) and his mother, Sudama Devi, were the legal heirs of Sachchidanand. This, the respondent argued, falsified the petitioners’ claim of heirship.
It was further pointed out that the ration card annexed for Mst. Urmila Devi named her husband/father as “Sastanand Bhagat” and not “Sachchidanand Bhagat”. Respondent no. 1 also pointed out that the Second Appeal No. 255 of 1999 was filed by Anil Kumar Bhagat, not by Atmanand Prasad, and that throughout these proceedings the petitioners never surfaced.
Respondent no. 1 contended that the entire decretal land of 3 decimals is in possession of judgment debtor Anil Kumar Bhagat, and Execution Case No. 02 of 2001 is still pending for handing over possession to the decree holder. Since delivery of possession has not yet taken place, the petitioners cannot claim to be in possession or dispossession, and thus they have no right to maintain an application under Order XXI Rules 97–104.
The respondent also drew attention to the petitioners’ earlier attempts to intervene in the execution through applications under Order I Rule 10(2) and Order XXII Rule 5 read with Section 151 CPC, which were dismissed as “not pressed”. This showed, according to him, that they earlier did not press their own claim and now are trying another route to delay the execution.
Relying on Sriram Housing Finance and Investment India Ltd. v. Omesh Mishra Memorial Charitable Trust, (2022) 15 SCC 176, the respondent submitted that since the petitioners were neither in possession nor dispossessed, they have no right to file objections under Order XXI Rules 97 to 104.
The High Court first noted the legal position that, in principle, a third party resisting or obstructing execution can maintain an application under Order XXI Rule 97, and that the Supreme Court has widely construed these provisions in cases like Brahmdeo Chaudhary, Ashan Devi and Silverline Forum to allow adjudication of third-party rights in execution itself.
However, the Court emphasised that the maintainability of such an application depends on the factual situation. The crucial questions were: who is in possession of the property, and what is the status of the petitioners in relation to the decree?
The petitioners’ own case was that they are legal heirs of the original plaintiff, Sachchidanand Bhagat, and that they received 1.5 decimals of the decretal property through a partition among the heirs of his two wives. On that basis, they claimed to be in possession of that share.
The Court held that if the petitioners truly claim to be heirs or legal representatives of the original plaintiff/decree holder, they cannot at the same time claim to be judgment debtors or strangers/third parties to the proceedings. Their claim is internally inconsistent.
The Court further observed that the execution proceedings are being carried out only to deliver possession of the property to the decree holder. If the decree holder (or those claiming through him) were already in possession, there would be no need for execution. Hence, the petitioners’ claim that they are in possession, while at the same time execution is pending to obtain possession for the decree holder, shows a clear fallacy.
The Court found that from the inception of the eviction suit in 1987 up to the dismissal of the SLP in 2008, the petitioners were never in the picture. The judgment debtors (respondent nos. 2–11) are admitted to be in possession as tenants. The petitioners’ claim of constructive possession was rejected because the tenants were never tenants under the petitioners; they were tenants of the original plaintiff and thereafter of his legal representatives.
The Court reasoned that the petitioners’ alleged possession is entirely dependent on future delivery of possession to the decree holder. If at all they have any claim as heirs of Sachchidanand to seek partition or share, that claim arises vis-à-vis the decree holder’s estate and not as an obstruction to delivery of possession to the decree holder from the tenants.
The Court therefore held that the petitioners neither qualify as persons in possession resisting delivery, nor as persons dispossessed. As such, they cannot maintain an application under Order XXI Rules 97–104.
The Court also relied on the Supreme Court’s observations in Silverline Forum Pvt. Ltd. that the executing court’s adjudication under Order XXI Rule 97(2) need not always involve detailed enquiry or evidence; it can be done on admitted facts or pleadings. The Court clarified that it is not mandatory for the executing court to open a full-fledged miscellaneous case in every objection filed under Order XXI Rules 97–106. The court must first see if a prima facie case of possession or dispossession is disclosed.
Since the petitioners failed to show any prima facie possession or dispossession and their status was doubtful and self-contradictory, the executing court was not bound to register a miscellaneous case or halt execution. Summary dismissal at the threshold was held to be justified.
The High Court also noted with concern that the eviction decree, passed back in 1989 and affirmed up to the Supreme Court in 2008, had still not been executed. Citing the Supreme Court’s remarks in Jini Dhanrajgir about decree-holders’ hardships in getting the fruits of their decrees, the Court observed that this case illustrates the same “sorry state of affairs” where execution is delayed for decades.
In light of these findings, the Patna High Court found no jurisdictional error in the impugned order dated 22.12.2023 passed by the executing court and affirmed it. Consequently, the civil miscellaneous petition was dismissed.
The Court also directed the executing court to proceed with Execution Case No. 02 of 2001 and take it to its logical conclusion, guided by the Supreme Court’s directions in Rahul S. Shah v. Jinendra Kumar Gandhi, (2021) 6 SCC 418, which lays down measures to ensure effective and timely execution of decrees.
Why This Judgment Matters
This judgment is significant for decree holders and for people who may be tempted to raise late objections in old execution cases.
First, the Patna High Court has made it clear that not every person claiming some connection to the property can stall execution by simply filing an objection under Order XXI Rule 97. The objector must show, at least on a basic level, that they are in possession or have been dispossessed in the course of execution.
Second, the Court has underlined that a person cannot take two inconsistent stands at the same time. One cannot claim to be a legal heir of the decree holder in order to share the benefit of the decree, and also claim to be an outsider resisting execution as a third party.
Third, the judgment supports quicker and more effective execution of eviction decrees. It warns against misuse of procedure to delay delivery of possession to decree holders, especially in cases which have already travelled through multiple appeals and even the Supreme Court.
For ordinary people, especially landlords or tenants involved in eviction proceedings, this judgment shows that once a decree is final, courts will be slow to entertain objections that appear designed only to delay execution, without clear proof of possession or dispossession.
Legal Issues and Answers
- Issue: Can alleged heirs of the decree holder, who claim a share in the decretal property, maintain an objection under Order XXI Rules 97–104 CPC as third parties in execution, without showing clear possession or dispossession?
Answer: No. The Court held that since they claim through the decree holder, they cannot be strangers. Their inconsistent claim of being both heirs and third parties, coupled with absence of actual or constructive possession vis-à-vis the judgment debtors, makes their application under Order XXI Rules 97–104 not maintainable. - Issue: Is the executing court bound to register a separate miscellaneous case and conduct a full enquiry on every objection filed under Order XXI Rule 97 CPC?
Answer: No. Relying on Silverline Forum, the Court held that the executing court must first see if a prima facie case of possession or dispossession is made out. If not, it can summarily reject the objection without detailed enquiry or separate registration. - Issue: Whether the Patna High Court should interfere in supervisory jurisdiction with the order rejecting the objection in limine?
Answer: No. Finding no jurisdictional error or legal infirmity in the impugned order dated 22.12.2023, the High Court affirmed it and dismissed the civil miscellaneous petition.
Cases Cited by the Court
- Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal & Anr., (1997) 3 SCC 694
- Ashan Devi & Anr. v. Phulwasi Devi & Ors., (2004) AIR (SC) 511
- Silverline Forum Pvt. Ltd. v. Rajiv Trust & Anr., (1998) 3 SCC 723
- Jini Dhanrajgir v. Shibu Mathew, (2023) 20 SCC 76
- The Raj Durbhunga, Under the Court of Wards v. Maharajah Coomar Ramaput Singh, (1871–72) 14 Moo IA 605 (referred in Jini Dhanrajgir)
- Kuer Jang Bahadur v. Bank of Upper India Ltd. Lucknow, 1925 Oudh 448 (referred in Jini Dhanrajgir)
- Martin Burn Ltd. v. Corporation of Calcutta, AIR 1966 SC 529
- Rahul S. Shah v. Jinendra Kumar Gandhi & Ors., (2021) 6 SCC 418
- Shamsher Singh v. Lt Col Nahar Singh, (2019) 17 SCC 279 (cited by petitioners)
- Bhanwar Lal v. Satyanarain, (1995) 1 SCC 6 (cited by petitioners)
- Sriram Housing Finance and Investment India Ltd. v. Omesh Mishra Memorial Charitable Trust, (2022) 15 SCC 176 (cited by respondent)
Case Details
Case Number: Civil Miscellaneous Jurisdiction No. 243 of 2024
Case Title: Nawal Kishore Bhagat & Anr. v. Ratan Kumar Bhagat & Ors.
Citation: 2025 (3) PLJR 953
Court: High Court of Judicature at Patna
Coram: Hon’ble Mr. Justice Arun Kumar Jha
Date of Judgment: 06-08-2025
Advocates:
- Mr. Surendra Kishore Tiwary, Advocate – for the petitioners
- Mr. Harendra Kumar Tiwary, Advocate – for the respondents
Nature of the Case: Civil miscellaneous petition challenging order of executing court in Title Execution Case No. 02 of 2001, arising out of Title Eviction Suit No. 30 of 1987.
Link to Judgment: Click here to read the full Patna High Court judgment
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