Case Background

The dispute started with Title Suit No. 301 of 1999 filed by the present petitioner as plaintiff before the Sub Judge 2nd, Kaimur at Bhabua. The plaintiff sought a declaration of his title and possession over certain lands and, if found out of possession, restoration of possession through court process.

The trial court dismissed the suit by judgment dated 28.02.2011 and decree dated 15.03.2011. The plaintiff then filed Title Appeal No. 24 of 2011 before the District Judge, Kaimur at Bhabua, which was heard by the Additional District Judge-5.

On 09.11.2016, with decree dated 21.11.2016, the first appellate court allowed the appeal. It set aside the trial court’s judgment, declared the plaintiff’s title and possession over the suit land, and directed defendant nos. 4 and 5 to remove encroachment within one month. This appellate judgment and decree remained unchallenged.

To enforce his decree, the plaintiff, now decree-holder, filed Execution Case No. 03 of 2017 (Pappu Singh vs. Sheo Narayan Mallah and others) before the Sub Judge 2nd, Kaimur at Bhabua.

At this stage, respondent no. 1, a third party to the original suit and appeal, came forward as an objector. He filed an objection under Order 21 Rule 97 of the Code of Civil Procedure, claiming independent title and possession over five municipal survey plots. On 08.04.2021, the executing court accepted the objection and stayed the entire execution proceeding till determination of the objector’s right, title and possession.

Aggrieved by this stay order, the decree-holder approached the Patna High Court under Article 227 of the Constitution in Civil Miscellaneous No. 118 of 2022.

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 entertaining the objector’s claim and in staying the execution over all the plots involved.

The decree-holder’s case was that the order of the executing court was illegal, arbitrary and mechanical. He pointed out that the execution was filed for several plots: Plot Nos. 370, 379, 390, 391, 392, 395, 396, 323, 326, 327, 272, 273, 274, 277 and 278. However, the objector had claimed rights only over Plot Nos. 272, 273, 276, 277 and 278.

Despite this limited claim, the executing court had stayed the entire execution proceeding. According to the decree-holder, this blanket stay was unjustified, especially when most plots were not even claimed by the objector.

The decree-holder also argued that the objector’s claim was based solely on:

• a sale deed dated 16.07.1943 (Sale Deed No. 4328) in favour of the objector’s grandmother, and
• entries in the municipal survey Khatiyan.

He submitted that the first appellate court, while allowing Title Appeal No. 24 of 2011, had already disbelieved the existence and legality of this 1943 sale deed. According to him, since that appellate judgment was never challenged, it had become final and the objector could not reopen that issue through an execution objection.

Mr. Arora, for the decree-holder, stressed that entries in municipal or revisional survey Khatiyan are not proof of title and cannot override the decree. He further submitted that the objector was aware of the title suit and appeal proceedings but chose not to participate, and had now filed a frivolous petition only to delay execution.

He relied on several Supreme Court decisions to highlight how execution proceedings are often misused to obstruct justice. He cited:

• Ghan Shyam Das Gupta vs. Anant Kumar Singh (AIR 1991 SC 2251) on the superior quality of execution provisions in the Code and the need to prevent frivolous resistance,
• Rahul S Shah vs. Jinendra Kumar Gandhi (2021 (6) SCC 418) where the Supreme Court directed that execution proceedings be decided within six months,
• The General Manager of the Raj Durbhunga vs. Maharaja Coomar Ramaput Singh ((1871-72) 14 Moore’s I.A. 605) on the difficulties decree-holders face even after getting decrees, and
• Shub Karan Bubna @ Shub Karan Prasad Bubna vs. Sita Saran Bubna ((2009) 9 SCC 869) emphasising that execution should not become a tool to obstruct justice.

On the other side, the objector, through Mr. K.N. Choubey, argued that he was never a party to the original suit or appeal and therefore could not have challenged the plaintiff’s claim earlier. His case was that his grandmother, Ramvarti Kuer, had purchased the suit property via Sale Deed No. 4328 dated 16.07.1943 and later exchanged part of it with Gajadhar Mallah through Exchange Deed No. 1294 dated 05.06.1944.

According to him, after this exchange, the remaining land stood in the name of his father, Badri Prasad Arya, in the municipal survey Khatiyan as M.S. Plot Nos. 272, 273, 276, 277 and 278. He claimed to be in peaceful possession of these plots.

Mr. Choubey submitted that, from the plaint in Title Suit No. 301 of 1999, it was clear that the sale in 1943 had occurred long before the suit and that the names of vendees were recorded in the Khatiyan. Yet, no suit was filed within three years to declare that sale deed void. He relied on Mohd. Noorul Hoda v. Bibi Raifunnisa & Ors. ((1996) 7 SCC 767) to argue that the plaintiff’s suit was barred under Section 31 of the Specific Relief Act.

He further highlighted that the persons whose names stood in the municipal Khatiyan were not made parties in the title suit. Therefore, the decision in Title Appeal No. 24 of 2011 could not bind the objector, who was in possession and whose predecessor’s name was recorded in the Khatiyan.

The objector accused the plaintiff of committing fraud upon the court by deliberately suppressing the existence of Khatiyan entries and not impleading necessary parties. He argued that the appellate court’s finding against the 1943 sale deed was not binding upon him as a non-party, and a decree obtained by fraud is a nullity. For this, he relied on:

• A.V. Papayya Sastry & Ors. vs. Government of A.P. & Ors. (2007 (2) PLJR (SC) 201), and
• Halsbury’s Laws of England Vol-16 (4th Edition) para 1553, and the old observation of Chief Justice Edward Coke that “fraud avoids all judicial acts, ecclesiastical or temporal”.

On the procedural point, he relied heavily on a series of Supreme Court judgments which state that even strangers to the decree who are in possession and claim independent title can object to execution under Order 21 Rules 97 to 106. These included:

• Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal (AIR 1997 SC 856),
• Shreenath and another vs. Rajesh and others (AIR 1998 SC 1827),
• Silverline Forum Pvt. Ltd. vs. Rajiv Trust (AIR 1998 SC 1754), and
• N.S.S. Narayana Sharma and others vs. M/s. Goldstone Exports (P) Ltd. and others (AIR 2002 SC 251).

The High Court first addressed the legal framework. Referring to Order 21 Rules 97, 99 and particularly Rule 101 of the Code of Civil Procedure, the Court noted that when there is resistance to delivery of possession, all questions relating to right, title or interest in the property arising between the parties to such proceedings have to be determined by the executing court itself and not by a separate suit.

Therefore, the Court held that the objector had a clear statutory right to raise his claim before the executing court, and the executing court was bound to adjudicate it. The earlier Supreme Court decisions cited by the objector confirmed that even a stranger in possession can object under Order 21 and seek adjudication before being dispossessed.

On the second major issue—non-joinder and alleged fraud—the High Court found merit in the objector’s argument. It noted that the father of the objector was shown as Khatiyan holder in municipal survey records, and this issue was specifically raised before the first appellate court under the heading of non-joinder of parties.

The appellate court had brushed aside this objection by saying that no relief was sought against such persons and they had not challenged the plaintiffs’ title. The High Court found this reasoning unsatisfactory, especially because the plaintiffs were now seeking delivery of possession over the same plots which, according to municipal records, belonged to the objector’s side.

The Court observed that it was contradictory for the plaintiffs to say that the recorded Khatiyan raiyats had not challenged their title and therefore were not made parties, yet at the same time seek to dispossess those very persons through execution. From this, the Court inferred that the conduct of the decree-holder appeared fraudulent so far as Plot Nos. 272, 273, 276, 277 and 278 were concerned.

At the same time, the Court acknowledged the need for speedy execution as underlined in Rahul S Shah, but emphasised that statutory protections for third parties under Order 21 Rules 97 to 106 could not be ignored. It referred to Jini Dhanrajgir & Anr. v. Shibu Mathew & Anr. (2023 SCC OnLine 643) and Martin Burn Ltd. v. Corporation of Calcutta (AIR 1966 SC 529) to underline that courts cannot bypass statutory provisions merely to avoid delay, even if the result causes hardship to a decree-holder.

In the final analysis, the Court concluded that the executing court was right in accepting the objector’s application and staying the execution to the extent necessary for proper adjudication of his rights.

However, the High Court found that the executing court had gone too far by staying execution with respect to all plots, even though the objector’s claim related only to Plot Nos. 272, 273, 276, 277 and 278. This overbroad stay was held to be beyond the executing court’s jurisdiction.

Accordingly, while affirming the impugned order in principle, the Patna High Court modified it to clarify that the stay of execution would operate only in respect of Plot Nos. 272, 273, 276, 277 and 278. Execution proceedings relating to other plots could proceed.

With this modification, the civil miscellaneous petition under Article 227 was dismissed.

Why This Judgment Matters

This judgment has important practical implications for land disputes and execution of civil decrees in Bihar and beyond.

First, it clearly affirms that people who are in possession of land and claim independent title, but were not made parties in the original suit, are not helpless when a decree threatens their possession. They can approach the executing court under Order 21 Rules 97 to 106 and demand that their rights be decided before they are evicted.

Second, it shows that courts will look closely at whether necessary parties were deliberately left out of earlier proceedings, especially when their names appear in official records like municipal survey Khatiyan. If such persons are later sought to be dispossessed through execution, the court may treat the earlier conduct as suspect and allow them to contest.

Third, the judgment balances the Supreme Court’s direction for speedy execution with the legal protection given to third parties. The Patna High Court refused to allow a blanket stay to block the entire decree but at the same time protected the objector’s limited claim by restricting the stay only to the disputed plots.

For decree-holders, this decision is a warning that they must implead all necessary parties at the suit stage, especially those whose names are on revenue or municipal records, if they later want smooth execution. For landholders whose names appear in such records but who were not made parties, the judgment demonstrates that recourse is still available at the execution stage.

Legal Issues and Answers

• Issue: Can a third party, not made a party to the original title suit or appeal but claiming independent title and possession over some of the decree land, object to execution under Order 21 of the Code of Civil Procedure?
  Answer: Yes. The Patna High Court held that under Order 21 Rules 97, 99 and 101, such an objector has a right to have all questions of right, title and interest adjudicated by the executing court itself, and the court is duty-bound to decide the objection.
• Issue: Was the executing court justified in staying the entire execution proceeding when the objector’s claim related only to certain specific plots?
  Answer: Only partly. The High Court upheld the stay in respect of Plot Nos. 272, 273, 276, 277 and 278, which were claimed by the objector, but held that extending the stay to all other plots was beyond jurisdiction. The order was modified so that the stay applies only to these five plots.
• Issue: Does non-impleadment of a recorded Khatiyan raiyat and his heirs make the appellate decree a nullity against them?
  Answer: The Court found merit in the objector’s contention that, as a Khatiyan raiyat not made a party, the appellate judgment in Title Appeal No. 24 of 2011 was not binding on him. His rights must therefore be independently examined by the executing court under Order 21.

Cases Cited by the Court

• Ghan Shyam Das Gupta vs. Anant Kumar Singh, AIR 1991 SC 2251
• Rahul S Shah vs. Jinendra Kumar Gandhi and Others, 2021 (6) SCC 418
• The General Manager of the Raj Durbhunga vs. Maharaja Coomar Ramaput Singh, (1871-72) 14 Moore’s I.A. 605
• Shub Karan Bubna @ Shub Karan Prasad Bubna vs. Sita Saran Bubna, (2009) 9 SCC 869
• S. Bhaskaran vs. Sebastian (dead) by L.Rs., 2019 (4) PLJR (SC) 1
• Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal and another, AIR 1997 SC 856
• Silverline Forum Pvt. Ltd. vs. Rajiv Trust and another, AIR 1998 SC 1754
• Shreenath and another vs. Rajesh and others, AIR 1998 SC 1827
• N.S.S. Narayana Sharma and others vs. M/s. Goldstone Exports (P) Ltd. and others, AIR 2002 SC 251
• Smt. Sarita Gupta vs. Sudhir Jaju & Ors., 1997 (2) CCC 122 (Raj.)
• Mohd. Noorul Hoda v. Bibi Raifunnisa & Ors., (1996) 7 SCC 767
• A.V. Papayya Sastry & Ors. vs. Government of A.P. & Ors., 2007 (2) PLJR (SC) 201
• Jini Dhanrajgir & Anr. v. Shibu Mathew & Anr., 2023 SCC OnLine 643
• Martin Burn Ltd. v. Corporation of Calcutta, AIR 1966 SC 529
• Halsbury’s Laws of England, Vol-16 (4th Edition), para 1553 (quoted)

Case Details

Case Number: Civil Miscellaneous Jurisdiction No. 118 of 2022

Case Title: Pappu Singh vs. Chandra Prakash Arya & Ors.

Citation: 2024 (2) PLJR 544

Court: High Court of Judicature at Patna

Coram: Hon’ble Mr. Justice Arun Kumar Jha

Date of Judgment: 03.04.2024

Nature of the Case: Civil miscellaneous petition under Article 227 of the Constitution challenging an order in execution proceedings (Execution Case No. 03 of 2017) arising from a title suit and title appeal.

Impugned Order: Order dated 08.04.2021 passed by Sub Judge 2nd, Kaimur (Bhabua) in Execution Case No. 03 of 2017, staying execution on objection under Order 21 Rule 97 CPC.

Advocates:

• For the Petitioner (decree-holder): Mr. J.S. Arora, Senior Advocate; Mr. Ashok Kumar Garg, Advocate
• For the Respondents (including objector): Mr. K.N. Chaubey, Senior Advocate; Mr. Ambuj Nayan Chaubey, Advocate; Mr. Dineshwar Pandey, Advocate; Mr. Sanjay Kumar Singh, Advocate

Link to Judgment: View full judgment on Patna High Court website

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