Code of Civil Procedure, 1908 (CPC)
Order XXI Rules 97 to 103 CPC: Resistance, Obstruction and Third-Party Claims
A decree for possession is worth nothing if the person in occupation simply refuses to move, and the Code must distinguish between an occupant who is bound by the decree and one who is not. Order XXI Rules 97 to 103 of the Code of Civil Procedure, 1908 supply a complete self-contained code for that situation: the decree-holder's application on resistance, the dispossessed person's application, the determination of all questions of right, title and interest by the executing court itself, the exclusion of transferees pendente lite, and the rule that every such determination has the force of a decree. These notes cover each rule in turn.
Rules 97 to 103 in the architecture of execution
1. The Problem the Rules Solve
§ Before and after 1976 Under the old scheme, an executing court dealt with resistance and obstruction summarily: it decided who was to have possession without deciding title, and the party aggrieved was relegated to a regular suit to establish his right. The result was that execution generated a second round of litigation, often longer than the first. The Amendment Act 104 of 1976 recast Rules 97 to 103 into a complete code. The executing court now decides all questions of right, title and interest arising between the parties to such an application, and its determination has the force of a decree, appealable as such. The object is the one that runs through the whole of the 1976 amendment: to end litigation rather than to redistribute it, and to prevent a decree-holder who has succeeded after a full trial from being made to begin again. |
2. Rule 97: Resistance or Obstruction to Possession
§ Order XXI Rule 97, CPC 1908 (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. (2) The Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. |
i. Who may apply. The decree-holder in a decree for possession of immovable property, and the auction purchaser of such property sold in execution.
ii. Against whom. Any person who resists or obstructs, whether the judgment-debtor, a person claiming under him, or a stranger asserting an independent right. The rule does not distinguish at the threshold; the distinction is drawn in the adjudication.
iii. What the court does. It shall adjudicate the application. The word is mandatory: the court cannot decline to decide, and it cannot dispose of the matter by sending the parties to a suit.
3. Rule 98: Orders on the Application
§ Order XXI Rule 98 (in substance) (1) Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2), — (a) make an order allowing the application and directing that the applicant be put into possession of the property; or (b) dismiss the application; or (c) pass such other order as in the circumstances of the case it may deem fit. (2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor, or by some other person at his instigation or on his behalf, or by any transferee where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed, the Court may also, at the instance of the applicant, order the judgment-debtor or any person acting at his instigation to be detained in the civil prison for a term which may extend to thirty days. |
Sub-rule (2) is the coercive limb, and its conditions repay attention. Detention for up to thirty days is available where the resistance was without any just cause and came from the judgment-debtor, from someone acting at his instigation or on his behalf, or from a transferee pendente lite. It is not available against a stranger asserting a genuine independent claim, whose position is governed by Rule 99 and the adjudication under Rule 101.
4. Rules 99 and 100: The Dispossessed Person
§ Order XXI Rules 99 and 100 (in substance) Rule 99(1). Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. Rule 99(2). Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. Rule 100. Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination, — (a) make an order allowing the application and directing that the applicant be put into the possession of the property, or (b) dismiss the application, or (c) pass such other order as in the circumstances of the case it may deem fit. |
§ Rule 97 and Rule 99 compared Rule 97 is the remedy of the decree-holder or auction purchaser who is being kept out of possession by resistance or obstruction. He applies before he gets possession. Rule 99 is the remedy of a person other than the judgment-debtor who has been put out of possession in execution. He applies after dispossession. The two are therefore mirror images, and both lead to the same adjudication under Rule 101 and the same consequence under Rule 103. Note that Rule 99 is expressly not available to the judgment-debtor, whose remedies lie under Section 47 and in appeal. |
5. Rule 101: All Questions Determined by the Executing Court
§ Order XXI Rule 101, CPC 1908 All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit, and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. |
§ Four features of Rule 101 Each is examinable: • All questions, including title. The rule expressly extends to questions of right, title or interest in the property, which the old summary procedure could not decide. • Between the parties to the application. The rule governs questions between the applicant and the resister or dispossessor, and their representatives; it does not draw in strangers to the application. • Not by a separate suit. The words are the counterpart of Section 47: the executing court decides, and a suit on the same questions is barred. • Deemed jurisdiction. The closing words confer jurisdiction notwithstanding anything to the contrary in any other law, so an executing court of limited pecuniary jurisdiction may decide a title question that would otherwise be beyond it. |
6. Rule 102: The Transferee Pendente Lite
§ Order XXI Rule 102, CPC 1908 Nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person. Explanation. In this rule, transfer includes a transfer by operation of law. |
Rule 102 gives procedural effect to the doctrine of lis pendens in Section 52 of the Transfer of Property Act, 1882: a person who takes a transfer of the suit property from the judgment-debtor after the institution of the suit is bound by the decree, and cannot resist its execution. He therefore gets no adjudication under Rules 98 and 100; his resistance is treated as the judgment-debtor's own, and he is liable to be removed, and under Rule 98(2) to detention where the resistance was without just cause. The Explanation extends the rule to transfers by operation of law.
7. Rule 103: The Determination Has the Force of a Decree
§ Order XXI Rule 103, CPC 1908 Where any application has been adjudicated upon under rule 98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree. |
The rule completes the scheme. Because the executing court has decided questions of title, its order is given the status of a decree: it operates as res judicata between the parties on the questions decided, and it is appealable in the same way as a decree, with the ordinary rights of first and second appeal. This is the feature that distinguishes the post-1976 scheme most sharply from the old summary procedure, under which the order settled nothing and a suit followed. Note the contrast with Section 47, where the 1976 amendment moved in the opposite direction, converting the determination from a decree into an order.
8. The Scheme in Summary
Rule | Who invokes it | Situation | Outcome |
|---|---|---|---|
Rule 97 | Decree-holder or auction purchaser | He is resisted or obstructed in obtaining possession | The court shall adjudicate the application |
Rule 98 | The court, on a Rule 97 application | After determining the questions under Rule 101 | Possession to the applicant, dismissal, or such other order; detention up to thirty days where resistance was without just cause by the judgment-debtor, his instigator or a transferee pendente lite |
Rule 99 | Any person other than the judgment-debtor | He has been dispossessed by the decree-holder or purchaser | The court shall adjudicate the application |
Rule 100 | The court, on a Rule 99 application | After determining the questions under Rule 101 | Restoration of possession, dismissal, or such other order |
Rule 101 | The court | Any question, including right, title or interest, between the parties to the application | Determined by the executing court and not by a separate suit, with deemed jurisdiction |
Rule 102 | By way of exclusion | Resistance or dispossession by a transferee from the judgment-debtor after the suit was instituted | Rules 98 and 100 do not apply; he is bound by the decree under lis pendens |
Rule 103 | By operation of law | Any order under Rule 98 or Rule 100 | Has the same force and is appealable as if it were a decree |
9. Rules 97 to 103 Compared with Rule 58 and Section 47
Basis | Order XXI Rule 58 | Order XXI Rules 97 to 103 | Section 47 |
|---|---|---|---|
Occasion | A claim or objection to the attachment of property | Resistance or obstruction to possession, or dispossession in execution | Any question of execution, discharge or satisfaction of the decree |
Who may invoke | A person claiming an interest in the attached property | The decree-holder or purchaser under Rule 97; any person other than the judgment-debtor under Rule 99 | The parties to the suit and their representatives |
Questions decided | All questions, including right, title and interest, by the executing court | All questions, including right, title and interest, by the executing court | Questions relating to execution, discharge or satisfaction |
Separate suit | Barred, save where the court refuses to entertain the claim under the proviso | Barred by Rule 101 | Barred by Section 47(1) |
Status of the order | Has the force of a decree: Rule 58(4) | Has the force of a decree: Rule 103 | An order since 1976, not a decree |
10. Landmark Points
- Order XXI Rule 97. A decree-holder or auction purchaser resisted or obstructed in obtaining possession may apply, and the court shall adjudicate.
- Order XXI Rule 98(2). Detention up to thirty days where the resistance was without just cause by the judgment-debtor, a person at his instigation, or a transferee pendente lite.
- Order XXI Rule 99. A person other than the judgment-debtor who is dispossessed in execution may apply, and the court shall adjudicate.
- Order XXI Rule 101. All questions, including right, title and interest, between the parties to the application are determined by the executing court and not by a separate suit, with deemed jurisdiction notwithstanding any other law.
- Order XXI Rule 102 with Section 52 of the Transfer of Property Act, 1882. A transferee from the judgment-debtor after the institution of the suit gets no adjudication, being bound by the decree under lis pendens.
- Order XXI Rule 103. Every order under Rules 98 and 100 has the force of a decree and is appealable as such.
11. Frequently Asked Questions
What does Order XXI Rule 97 provide?
That where the holder of a decree for possession of immovable property, or the purchaser of such property sold in execution, is resisted or obstructed by any person in obtaining possession, he may apply to the court, and the court shall proceed to adjudicate upon the application.
Who can apply under Order XXI Rule 99?
Any person other than the judgment-debtor who has been dispossessed of immovable property by the decree-holder or by the auction purchaser. The judgment-debtor cannot apply under this rule; his remedies lie under Section 47 and in appeal.
Does the executing court decide questions of title under these rules?
Yes. Rule 101 provides that all questions, including questions relating to right, title or interest in the property, arising between the parties to an application under Rule 97 or Rule 99 are determined by the court dealing with the application and not by a separate suit, and it is deemed to have jurisdiction to decide them.
Can a person who resists possession be detained?
Yes, in the circumstances of Rule 98(2): where the court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor, by a person at his instigation or on his behalf, or by a transferee pendente lite, it may order detention in civil prison for a term extending to thirty days.
What is the position of a transferee from the judgment-debtor after the suit was filed?
Under Rule 102 he gets no adjudication: Rules 98 and 100 do not apply to resistance or dispossession by a person to whom the judgment-debtor transferred the property after the institution of the suit. The rule gives effect to lis pendens under Section 52 of the Transfer of Property Act, and the Explanation extends it to transfers by operation of law.
Is an order under Rules 98 or 100 appealable?
Yes. By Rule 103 such an order has the same force and is subject to the same conditions as to appeal or otherwise as if it were a decree, so it is appealable as a decree and operates as res judicata on the questions decided.
How do Rules 97 to 103 differ from Order XXI Rule 58?
Rule 58 deals with claims and objections to the attachment of property; Rules 97 to 103 deal with resistance, obstruction and dispossession in the delivery of possession. Both empower the executing court to decide all questions of right, title and interest rather than relegating the parties to a suit, and in both the order has the force of a decree.
12. Related Topics in This CPC Series
- Sale of Attached Property and Setting Aside a Sale
- Attachment in Execution: Sections 60 to 64 and Order XXI
- Questions Determined by the Executing Court under Section 47
- Execution of Decrees: Sections 36 to 74 and Order XXI