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- INTRODUCTION
Order XXI Rule 97 of the Code of Civil Procedure (“CPC”) deals with situations wherein a decree-holder, when taking possession of immovable property after a decree has been passed in their favour, is obstructed or resisted from doing so by a third party.
According to this rule, the decree-holder facing such resistance can apply to the executing court claiming their rights and complaining about such resistance. After such application has been made, the court shall decide whether the resistance was valid, and with which party the right of possession lies. However, with respect to a third party who is neither the decree-holder nor the judgment-debtor but has claimed possession of a property, there are interpretations of Order XXI Rule 97 of CPC where various courts have interpreted in different ways. Such convolutions in judgements have complicated the processual law, making it a complex domain.
- ADJUDICATION OF THIRD-PARTY RIGHTS
A third party who is in possession of an immovable property has the right to file an application under Order 21 Rule 97 of CPC, complaining about their grievances. According to Rule 101 of CPC, there is no requirement of filing a separate suit because, in accordance with Rule 101 of CPC, the executing court will ultimately decide all disputes. In the case of Shreenath and Anr v.Rajesh and Ors.[1] it was discussed that the adjudication of the third-party rights has to be conducted within the execution proceedings and not by filing separate suits because that would lead to a long litigation.
In the case of Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and Ors.[2], the main issue was whether a person who is not a party to a decree and opposes its execution could have their concerns decided without first being evicted. The Supreme Court of India ruled that such a person might in fact have their concerns considered under Order XXI Rule 97 of CPC prior to dispossession.
The Supreme Court reiterated that the rules in Order XXI of of CPC together form a complete system for dealing with problems that arise during execution of a decree for possession of property. Where a decree-holder encounters resistance or obstruction in taking possession, the proper course is to invoke Rule 97 of CPC, under which the executing court must hear both parties and determine the legitimacy of the resistance before passing appropriate orders. On the other hand, Rule 99 of CPC only applies where a third party not bound by the decree has already been evicted without having a chance to protest and requests that their possession be returned on the grounds of unlawful eviction. The Court underlined that the decree-holder cannot directly request help of police force under Rule 35 of CPC to avoid judicial adjudication once an obstruction has been recorded. Instead, the executing court must decide the issue under Rule 97 of CPC. Accordingly, the Court held that a person asserting an interest in the property may raise objections and seek adjudication even prior to dispossession, rejecting the High Court’s interpretation that an objector must first surrender possession before pursuing recovery under Rule 99 of CPC.
The Court granted the appeal and upheld natural justice principles by overturning the High Court’s ruling and sending the matter back to the executing court to decide the appellant’s claim in accordance with Order XXI Rule 97 of CPC.
2.1 Remedy of Third Parties in Execution Proceedings
For third party to secure his rights, an efficient way is to file an application within the executing proceeding. There are precedents, however, where Order XXI Rule 97 of CPC has been interpreted in a way so as to lay down the option of filing a separate suit. In the case of Usha Jain v. Manmohan Bajaj[3], the Court stated that two options exist for the third party to file an application under Order XXI Rule 97 of CPC. Either the third party can file an application after dispossession under Order XXI Rule 99 of CPC, and the executing Court will be mandated to adjudicate the matter under Rule 99 of CPC, or the third party can file a separate suit praying for a declaration of title.
In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and Ors[4], the Court clarified that when a decree-holder faces resistance or obstruction, they must apply under Rule 97 of CPC, and if a third party is unlawfully dispossessed, they may apply under Rule 99 of CPC. Both situations must be adjudicated by the executing court itself, and the resulting order is treated as a decree, appealable but not subject to a separate civil suit. The Court further ruled that a third party can raise objections either before or after dispossession, ensuring compliance with the principles of natural justice and preventing multiplicity of proceedings.
Therefore, now it is a settled law that a separate suit need not be filed by a third party, and his grievances may be addressed within a single execution proceeding under Order XXI Rule 97 of CPC.
- BALANCE WITH THE DECREE HOLDER RIGHTS
Although Order XXI Rule 97 ensures that the rights of decree-holders are safeguarded, such rights cannot override the lawful possession or interests of third parties who were not part of the original suit but lawfully possess the property. In Shreenath & Anr. v. Rajesh & Ors[5], the Court observed, “In interpreting any procedural law, where more than one interpretation is possible, the one which curtails the procedure without eluding justice is to be adopted. The procedural law is always subservient to and is in aid of justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed.” The rights of such third parties must therefore be duly recognised and protected during the execution of the decree.
In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and Ors[6] and Silverline Forum Pvt. Ltd. v. Rajiv Trust and Ors[7], courts have underscored the importance of maintaining a balance between the rights of decree-holders and those of bona fide third parties with an aim to achieve an equitable solution.
Yet again, a barrier exists in the deliverance of justice. The Supreme Court of India, in Sriram Housing Finance & Investment (India) Ltd. v. Omesh Mishra Memorial Charitable Trust[8], held that under Order XXI Rule 97 of CPC, only the ‘decree-holder’ is entitled to make an application when he faces resistance or obstruction by “any person”. Furthermore, the Supreme Court noted that any third party, other than the decree-holder or the purchaser of scheduled property at an auction, in pursuance of execution of decree, is not entitled to make an application under Order XXI Rule 97 of CPC. The relevant portion reads as follows:
“24. On conjoint reading of the aforesaid provisions, it can be observed that under Rule 97, it is only the “decree-holder” who is entitled to make an application in case where he is offered resistance or obstruction by “any person”. In the present case, as admitted by the appellant itself, it is a bona fide purchaser of the property and not the “decree holder”.
The Court noted that the appellant could not invoke Rule 97 of CPC to challenge the execution of the decree passed in favour of the respondents. Furthermore, the Court also stated that Rule 99 of CPC pertains to complaints made to the Court against “dispossession” of immovable property by a person in “possession”, at the instance of a decree-holder.
The Sriram Housing Finance case precedence disrupts the balance which courts tried to achieve by prioritizing the enforcement of a decree over due process for third parties, potentially leading to multiplicity of suits. Such a situation may compel third parties to seek remedies through separate suits thus causing chaos and imbalance, and refutes the constitutional principles of fairness, justice and due process of the law.
However, a shift has been observed in interpreting the letter of the law. The judgement of the Supreme Court in Periyammal (Dead) Through LRs & Ors. v. V. Rajamani & Anr.[9], the Apex Court set aside the order of the executing court and laid down that processual laws must not hinder the deliverance of justice. A conjoint reading of various case precedents in this pretext clarified that in executing a decree for possession, the court can deliver actual possession to the decree-holder and remove only those “bound by the decree” under Rule 35 of CPC. Rules 97-101 of CPC address resistance by “any person,” including strangers claiming independent or derivative rights. Thus, Rule 97 of CPC provides remedies for both decree-holders and third parties who obstruct possession, while Rule 99 of CPC applies when such third parties are already dispossessed and seek restoration. Under Rule 101 of CPC, the executing court must decide all relevant questions of right, title, or interest arising between the parties. The order passed thereafter is deemed a decree, against which an appeal lies and no separate suit is maintainable.
Thus, this judgement counters the Sriram Housing Finance case judgement. In Sriram Housing, the court had taken a restrictive approach, holding that a third party could seek redressal of their grievance only after dispossession under Order XXI Rule 99 of CPC. In contrast, the Supreme Court in Periyammal decision adopted an expansive interpretation. It recognised that both decree-holders and bona fide third parties with lawful claims can seek adjudication within execution proceedings under Order XXI Rule 97 of CPC. Such departure from the previous judgement reflects the primary notion that the courts have a major role in balancing the interests to ensure equity and fair play, and also avoid multiplicity of proceedings.
However, yet again there arises a discrepancy with regard to the relief granted to third parties which lies in the distinction of ‘independent third parties’ and ‘derivative claimants of judgement-debtor’. Rule 102 of CPC expressly states that derivative claimants from the judgment-debtor cannot maintain an application under Rule 97 of CPC because they are deemed to be bound by the decree. The Bhramdeo judgement also affirms that only third parties with ‘independent right, title or interest’ make a valid application under Rule 97 of CPC. Rule 102 of Order XXI of CPC has been inserted with the clear intention to achieve finality in judicial decisions. The provision incorporates the principle of “interest reipublicae ut sit finis litium” that is, it is in the interest of the State that there should be an end to litigation. Furthermore, the Delhi High Court in Leelawati v. Rajiv Kumar[10], reaffirmed that Order XXI Rule 99 CPC is meant for a third party who is a stranger to a decree. A judgment-debtor’s wife cannot make use of this provision.
Additionally, in Sanjay Kumar Yadav v. Kaushal Kumar Mishra & Ors.[11], the Patna High Court dismissed a writ petition under Article 227 which challenged the rejection of an application filed under Order XXI Rule 97 of CPC in an eviction execution suit. The petitioner, who is originally a judgment-debtor, claimed that after purchasing the decretal property from one of the decree-holders, his status had changed and the decree was no longer executable. The Court held that such a purchase did not transform his position into that of a third party or decree-holder, as the joint decree in favour of multiple decree-holders remained indivisible under Order XXI Rule 15 of CPC. It concluded that since the petitioner continued to be a judgment-debtor, his application under Order XXI Rule 97 of CPC was not maintainable.
In conclusion, under the strict letter of the law, not all third parties but only independent third parties with valid right claim or interest in a decretal property has the option to file an application under Rule 97 of CPC. This is observed with the goal to ensure fairness, justice, and equity, and prevent multiplicity of proceedings.
- LEGITIMACY OF THIRD-PARTY POSSESSION CLAIMS
Courts determine the legitimacy of third-party possession claims under Order XXI Rule 97 of CPC by conducting a summary inquiry into whether the possession is lawful, independent, and not derivative of the judgment-debtor. The key consideration is whether the third party is in actual, settled possession at the time of execution and whether such possession is backed by a claim of ownership, tenancy, or other lawful interest. The burden lies initially on the third party to prima facie establish their right, title, or interest, after which the executing court evaluates the evidence, such as title deeds, lease agreements, tax receipts, and the nature of occupation.
In the case of Ram Chandra Verma v. Manmal Singhi 1982[12], the question before the Sikkim High Court in the 1982 case of Ram Chandra Verma v. Manmal Singhi was whether the executing court may move forward notwithstanding the objections of a third party in possession of the decretal property, arguing that it was not bound by the decree. The High Court heard the appeal from the executing court, which decided that the application was denied because there was no explicit clause allowing a third party to object to the execution. The Sikkim High Court, however, placed a strong focus on the breach of natural justice principles that would have happened if the executing court’s opinion had been accepted. To address the alleged infraction, the High Court read Rule 35 of Order 216. According to the High Court, the term “any person bound by the decree” only refers to the judgment debtor and any other individuals who made a claim on their behalf. As a result, a third party asserting a right or title over the decretal property separate and apart from the judgment debtor was exempt from Rule 35. The High Court decided that a court would be required to take such objections into consideration under Rule 35 of CPC in the interest of natural justice since it was impossible to determine whether a third party had an independent right without hearing the third party.
- EVIDENTIARY STANDARD THAT SHOULD APPLY TO THIRD PARTIES CLAIM
The evidentiary standards applicable to third-party resistance under Order XXI Rule 97 of CPC are rooted in summary civil procedure, but require the third party to establish a prima facie, lawful, and independent right to possession. The resisting party have to produce documentary evidence indicating ownership or lawful occupation not derived from the judgment-debtor. The third party must show they are not a mere proxy, licensee, or tenant-at-will under the judgment-debtor. Courts are also cautious of collusive or post-decree transfers meant to defeat execution and will disregard possession that lacks bona fides.
The main issue in the case of Silverline Forum Pvt. Ltd. vs. Rajiv Trust and Ors.[13] was whether a sub-tenant, not party to an eviction decree, could resist its execution. Silverline Forum Pvt. Ltd. (appellant) sought to evict Rajiv Trust (respondent) and its sub-tenants from a property in Calcutta. The Supreme Court held that the sub-tenant, M/s. Capstain Shipping Estate Pvt. Ltd., was bound by the eviction decree as it did not notify the landlord of its sub-tenancy as required by the West Bengal Premises Tenancy Act, 1956. The Court allowed the appeal, setting aside the High Court’s order, and granted Silverline Forum Pvt. Ltd. the right to possession by removing the sub-tenant’s resistance.
Again in the case Bhanwar Lal v. Satyanarain and Anr.,[14] a three – Judge Bench has stated as under: “reading of Order 21, Rule 97 of CPC clearly envisages that “any person” even including the judgment-debtor irrespective whether he claims derivative title from the judgment-debtor or set up his own right, title or interest de hors the judgment debtor and he resists execution of a decree, then the court in addition to the power under Rule 35(3) has been empowered to conduct an enquiry whether the obstruction by that person in obtaining possession of immovable property was legal or not. The degree-holder gets a right under Rule 97 of CPC to make an application against third parties to have his obstruction removed and an enquiry thereon could be done.”
- BONA FIDE PURCHASER RIGHTS AND THE DOCTRINE OF LIS PENDENS
A bona fide purchaser is who acquires immovable property for value and without notice of an ongoing suit may resist execution, provided they establish that their purchase occurred before the decree or without knowledge of the pending litigation. However, Section 52 of the Transfer of Property Act, embodying the doctrine of lis pendens, renders any transfer during the pendency of a suit subject to the outcome of that suit. Thus, a purchaser acquiring property pendente lite steps into the shoes of the judgment-debtor and cannot resist execution if the decree goes against the seller. Courts have consistently held that while Rule 97 of CPC allows third-party resistance, the right to possession must not be tainted by lis pendens, fraud, or collusion.
In K.K. Verma v. Union of India[15] courts have ruled that a lis pendens transferee cannot claim independent rights unless they prove lack of notice and good faith under the standards of a bona fide purchaser. Hence, a third party’s ability to invoke Rule 97 of CPC is constrained by lis pendens, but protected if the purchase predates litigation and the possession is genuine and lawful.
- INCONSISTENCIES IN THE INTERPRETATION OF ORDER XXI RULE 97 OF CPC
While Ram Verma case 1982[16] provided the third-party power to apply to the executing court under Rule 35 of CPC to object to the execution, the Madhya Pradesh High Court, in Bhagwat Narayan Dwivedi v. Kasturi 1933[17], put the entire burden on the decree-holder. It was held that all the third-party had to do was to inform the court that he was in possession of the decretal property on the basis of a right independent of the judgment-debtor and not at the latter’s instigation. If this was done, the entire burden would then shift to the decree-holder to prove that the objector is, in fact, a “person bound by the decree” under Rule 35 of CPC. If the decree-holder failed in proving this, the executing court could not proceed with the execution until he filed an application under Order 21 Rule 97 of CPC, complaining of such resistance or obstruction.
Various High Courts in India have adopted divergent interpretations of Order XXI Rule 97 of CPC, especially regarding whether a third party (not party to the original suit) can independently invoke this provision to resist execution. Calcutta High Court in some cases has allowed third parties to file Rule 97 of CPC applications to protect independent possession, aligning with the Supreme Court’s view in Brahmdeo Chaudhary’s judgement but Allahabad and Delhi High Courts have held that only decree-holders or auction purchasers can initiate applications under Rule 97 of CPC, requiring third parties to resort to separate civil suits, as echoed in Sriram Housing Finance v. Omesh Misra Trust. Moreover, there is inconsistency in the standard of inquiry. These conflicting interpretations lead to forum shopping, uncertainty in execution law, and uneven protection of possessory rights. The lack of uniformity underscores the need for a clarificatory ruling by a larger Supreme Court bench or legislative refinement to harmonize procedural rights across jurisdictions.
In Brahmdeo Choudhary v. Rishikesh Prasad Jaiswal (1997) 3 SCC 694, the Court held that even a person who is not a decree-holder or auction purchaser, like a third party facing dispossession, can approach the court for relief under this provision.
However, in a later judgment, Sriram Housing Finance v. Omesh Misra Memorial Charitable Trust, the Court took a stricter view. It stated that only decree-holders or auction purchasers are allowed to use this legal route.
Therefore, the case Brahmdeo Choudhary v. Rishikesh Prasad Jaiswal expanded the scope of Order XXI Rule 97 of CPC while the case of Sriram Housing Finance v. Omesh Misra Memorial Charitable Trust gave a strict textual interpretation of the same.
In Brahmdeo Choudhary Case, the Supreme Court adopted a broad and purposive interpretation, affirming that a third party claiming independent possession or title, even if not a party to the original suit, has the right to resist execution under Rule 97 of CPC. The Court emphasized that the executing court must adjudicate all questions of right, title, or interest arising from such resistance within the execution proceedings, thereby promoting judicial economy and protecting bona fide possessors from wrongful dispossession. The Sriram Housing decision took a narrower view, holding that only the decree-holder or purchaser in execution can invoke Rule 97 of CPC, and that third parties must seek remedy through separate civil suits.
[1]AIR 1998 SC 1827
[2] AIR 1997 SC 856
[3] 1980 SCC Online MP 44
[4] AIR 1997 SC 856
[5] (1998) 4 SCC 543
[6] AIR 1997 SC 856
[7] AIR 1998 SC 1754
[8] (2022) 15 SCC 176
[9]Civil Appeal 3640-3642 of 2025
[10]2025 SCC OnLine Del 5725
[11]AIR 2024 Pat 111
[12] SCC Online Sikk 3
[13] AIR 1998 SC 1754
[14] AIR 1995 SC 358
[15] ILR 1954 Bom 950
[16] SCC Online Sikk 3
[17] SCC Online MP 36