Execution petition cannot be dismissed merely on the basis that the property has been lost to a third party/encroacher.: Supreme Court of India

Execution petition cannot be dismissed merely on the basis that the property has been lost to a third party/encroacher.: Supreme Court of India

(Smt. Ved Kumari (Dead Through Her Legal Representative) Dr. Vijay Agarwal vs Municipal Corporation of Delhi, SLP(C) Nos. 12601-12602 of 2017, decided on August 24, 2023) The Hon’ble Supreme Court has ruled that the Executing Court cannot dismiss an execution petition by treating the decree for possession as inexecutable, merely on the basis that the property has been lost to a third party/encroacher. In the present case, an Appeal was preferred against the order of the Hon’ble Delhi High Court whereby it affirmed the order of the Executing Court dated 11.09.2012 holding that the decree for possession of immoveable property is not executable against the Judgment Debtor. The factual matrix of the case was that the Appellant  who was the Plaintiff, leased out land measuring 400 sq. yds. out of Khasra No. 4/39/1 situated at village Khureji Khas, Abani Radheypuri, Ilaqa Shahdara, Delhi within the limit of Municipal Corporation Delhi vide lease deed dated 06.01.1973 to the Respondent-Corporation for a period of 10 years initially @ monthly rent of Rs. 30/-, which was renewable with the consent of both the parties, however the lease was not renewed subsequently after expiry on 06.01.1983. Thereafter, the Appellant served a notice upon the Respondent-Corporation dated 02.12.1987 vide which the Respondent-Corporation was called upon to hand over the peaceful vacant possession of the Suit Land on or before 06.01.1988. The Respondent-Corporation did not turn to the demand of the appellant. The Appellant/Plaintiff filed Suit for recovery of possession in respect of the Suit Land against Respondent-Corporation which was decreed for possession in favour of Appellant/Plaintiff and against the Respondent Corporation on 23.03.1990. Thereafter, the Appellant filed execution proceedings to get the decree for possession executed against the Judgment-Debtor i.e. Respondent-Corporation. For the first time, the Respondent-Corporation informed the Executing Court that the suit land is not in its possession and the same has been encroached upon.   In response, the Appellant submitted that even if the suit land is subsequently encroached by a third party, the judgment-debtor cannot escape the liability of satisfying the decree. The Executing Court noted the stand of the respondent-Corporation, at the inception of the suit,  that the suit land is in its possession but that in execution proceedings, the respondent-Corporation has taken altogether a different stand. By allowing an Appeal, the Hon’ble Supreme Court held that: “In view of the settled legal position, as noted (supra), it was the duty of the Executing Court to issue warrant of possession for effecting physical delivery of the suit land to the decree-holder in terms of suit schedule property and if any resistance is offered by any stranger to the decree, the same be adjudicated upon in accordance with Rules 97 to 101 of Order XXI of the CPC. The Executing Court could not have dismissed the execution petition by treating the decree to be inexecutable merely on the basis that the decree-holder has lost possession to a third party/encroacher. If this is allowed to happen, every judgment-debtor who is in possession of the immoveable property till the decree is passed, shall hand over possession to a third party to defeat the decree-holder’s right and entitlement to enjoy the fruits of litigation and this may continue indefinitely and no decree for immovable property can be executed.”     Read the full Judgment here