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Civil Law

Section 47 of CPC

 10-Mar-2025

Periyammal (Dead Thr. Lrs.) and ORS. v. Rajamani and Anr. 

“In such circumstances referred to above the application of the respondents No. 1 and 2 under Section 47 of the CPC bearing R.E.A. No. 163 of 2011 was in substance an application for determination of their possessory rights under Order XXI Rule 97.” 

Justice JB Pardiwala and Justice Pankaj Mithal 

Source: Supreme Court  

Why in News? 

Recently, the bench of Justice JB Pardiwala and Justice Pankaj Mithal have held that despite the respondents having filed an application under Section 47 of the Code of Civil Procedure,1908 (CPC), it would be treated as an application under Order XXI Rule 97 CPC, which eliminated the necessity for a separate application under that provision.  

  • The Supreme Court held this in the matter of Periyammal (Dead Thr. Lrs.) and ORS v. Rajamani and Anr. (2025). 

What was the Background of  Periyammal (Dead Thr. Lrs.) and ORS v. Rajamani and Anr Case? 

  • On 30th June, 1980, Ayyavoo Udayar (father of the appellants) entered into an agreement of sale with Ramanujan and Jagadeesan (respondent nos. 3 and 4) to purchase the disputed property for Rs. 67,000/-. 
  • Ayyavoo Udayar paid Rs. 10,000/- as earnest money, with the balance of Rs. 57,000/- to be paid by 15th November 1980, upon which the vendors would execute the sale deed. 
  • On 15th November 1980, Ayyavoo Udayar sent a telegram requesting the vendors to accept the balance payment and execute the sale deed. The vendors replied they would execute it on 20th November 1980 but failed to do so. 
  • Since the vendors did not execute the sale deed despite notices and settlement talks, Ayyavoo Udayar filed O.S. No. 514 of 1983 before the Subordinate Judge, Salem, seeking specific performance of the agreement. 
  • Respondent nos. 1 and 2 (sons of the vendors' sister) were impleaded in the suit as they had been inducted into the property to create an appearance of possession. They did not contest the suit and allowed it to proceed ex parte against them. 
  • On 2nd April 1986, the Additional Subordinate Judge decreed the suit and directed the vendors to execute the sale deed within one month, failing which the court would execute it. 
  • The vendors appealed to the High Court, which partly allowed the appeal with some modifications. Respondent nos. 1 and 2 did not appear in the appeal. 
  • The vendors' second appeal to the High Court Division Bench was dismissed on March 19, 2004, with a condition that appellants would deposit an additional Rs. 67,000/- within one month. The appellants deposited this amount on April 19, 2004. 
  • The vendors filed a special leave petition to the Supreme Court, which was dismissed on 20th January, 2006. Their subsequent review petition was also dismissed on April 18, 2006. 
  • The appellants filed execution petitions (R.E.P. No. 237 of 2004 and later R.E.P. No. 244 of 2005) for executing the sale deed and obtaining possession. 
  • On 17th August 2007, the Executing Court executed a registered sale deed in favor of the appellants on behalf of all respondents, including respondent nos. 1 and 2. 
  • The vendors objected to including respondent nos. 1 and 2 in the sale deed. The appellants agreed to their removal, and a rectification deed was executed on January 25, 2008. 
  • On 12th February 2008, the Executing Court ordered delivery of possession to the appellants. However, respondent no. 1 obstructed the delivery by threatening self-immolation, resulting in an obstruction report. 
  • On 12th March 2008, respondent nos. 1 and 2 filed an application under Section 47 of the CPC (R.E.A. 163 of 2011), claiming they received no notice regarding execution of the sale deed, their names were deleted from the deed making it non-binding on them, and alleging fraud by the appellants. 
  • Respondent nos. 1 and 2 also petitioned the Tehsildar to include their names in the cultivation account for the property retrospectively from 1974, claiming possession since 1967. 
  • On 12th August 2011, the Additional Subordinate Judge allowed the respondents' application, finding they had established possession of the property, and ruled that appellants had not sought relief against them in the execution petitions. 
  • The appellants challenged this through Civil Revision Petition No. 4311 of 2011 and filed amendment applications (R.E.A. No. 14 of 2012 and R.E.A. No. 145 of 2013) to modify their original execution petition. 
  • On 24th April 2015, the ASJ disallowed the amendments, ruling that since no appeal had been filed against the 12th August 2011 order, it had become final and binding.

What were the Court’s Observations? 

  • The Supreme Court has made significant observations regarding the interplay between Section 47 of the Code of Civil Procedure, 1908 (CPC) and Order XXI Rule 97 in execution proceedings.  
  • The Court has established the following legal position: 
    • An application filed under Section 47 of CPC relating to determination of questions concerning execution of a decree shall be deemed as an application filed under Order XXI Rule 97 if it raises questions pertaining to right, title, or interest in the property. 
    • While Section 47 CPC and Order XXI Rule 97 address distinct proceedings—with the former concerning execution, discharge, or satisfaction of a decree and the latter dealing with resistance or obstruction to possession—an application under Section 47 filed by a judgment debtor or an aggrieved third party will be treated as one under Order XXI Rule 97 if it substantively raises questions of possessory rights. 
    • The Court elucidated that where an application under Section 47 CPC raises objections concerning rights in the property, which the executing court cannot determine post-decree, reclassifying it as an application under Order XXI Rule 97 CPC empowers the executing court to adjudicate such issues in accordance with Rule 101. 
    • The Supreme Court reaffirmed the legal principle that the executing court cannot question the validity of the decree or go beyond its scope, but can determine questions of right, title or interest in the property under Order XXI Rule 101 when an application is properly before it under Rule 97. 
    • In the instant case, the respondents who claimed to be bona fide cultivating tenants were attempting to resist dispossession after the decree was passed—an issue they could have raised during the trial. The Court treated their Section 47 application substantively as one under Order XXI Rule 97 and adjudicated it under Rule 101. 
    • The Supreme Court set aside the impugned judgment of the High Court and the order of the Executing Court, directing that vacant and peaceful possession of the suit property be handed over to the appellants as decree holders within two months, with police assistance if necessary. 
  • This judgment clarifies the procedural framework for addressing challenges in execution proceedings, particularly when questions of right and possession arise, and reinforces the comprehensive scheme under Order XXI for resolving disputes pertaining to execution of decrees for possession. 

What is Section 47 of CPC? 

  • Section 47 of the Code of Civil Procedure (CPC) deals with questions related to decree execution. Here are the key statements summarizing this section: 
    • All questions between parties to a suit relating to the execution, discharge, or satisfaction of a decree must be determined by the Court executing the decree, not by a separate suit. 
    • The Court has the authority to determine whether any person is a representative of a party for the purposes of this section. 
    • A plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are still considered parties to the suit. 
    • A purchaser of property at a sale in execution of a decree is deemed to be a party to the suit in which the decree was passed. 
    • All questions relating to the delivery of possession of such property to the purchaser or their representative are considered questions relating to the execution, discharge, or satisfaction of the decree. 
    • The fundamental principle behind Section 47 is to prevent multiplicity of proceedings by ensuring that all execution-related matters are handled by the same court that passed the decree. 

What are the Relevant Provisions Referred? 

  • Order XXI: Deals with Execution of Decrees and Orders Payment under Decree. 
  • Order XXI Rule 97: Resistance or obstruction to possession of immovable property. 
    • When a decree-holder or purchaser of immovable property is resisted or obstructed in obtaining possession, they may apply to the Court complaining of such resistance/obstruction. 
    • Upon such application, the Court shall proceed to adjudicate the matter according to the provisions contained in the Order. 
  • Order XXI Rule 98: Orders after adjudication: 
    • After determining questions under Rule 101, the Court shall:  
      • Allow the application and direct the applicant be put into possession, or dismiss the application. 
      • Pass any other appropriate order as deemed fit. 
    • If resistance was without just cause by the judgment-debtor or someone acting on their behalf, or by a transferee during pending proceedings, the Court shall:  
      • Direct the applicant be put into possession. 
      • May order detention in civil prison for up to 30 days if resistance continues. 
  • Order XXI Rule 99: Dispossession by decree-holder or purchaser: 
    • When any person other than the judgment-debtor is dispossessed by a decree-holder or purchaser, they may apply to the Court. 
    • The Court shall proceed to adjudicate upon such application. 
  • Order XXI Rule 100: Order to be passed upon application complaining of dispossession: 
    • Upon determination of questions under Rule 101, the Court shall:  
      • Allow the application and direct the applicant be put into possession or dismiss the application. 
      • Pass any other appropriate order as deemed fit. 
  • Rule 101: Question to be determined: 
    • All questions (including right, title, or interest) arising between parties on applications under Rules 97 or 99:  
      • Shall be determined by the Court dealing with the application. 
      • Not by a separate suit. 
      • The Court shall be deemed to have jurisdiction to decide such questions regardless of contrary provisions in other laws. 

Constitutional Law

Preventive Detention

 10-Mar-2025

Manzoor Ahmad Wani v Union Territory of J&K 

“If the accused, after being released on bail, was involved in acts prejudicial to the state, the prosecution was well within its rights to seek the cancellation of bail.” 

Justice Javed Iqbal Wani 

Source: Jammu & Kashmir High Court 

Why in News? 

Justice Javed Iqbal Wani held that the prosecution never sought cancellation of the petitioner’s bail despite having the explicit liberty to do so under the trial court's order. 

What was the Background of Manzoor Ahmad Wani v Union Territory of J&K Case?   

  • Manzoor Ahmad Wani filed a petition (through his brother) in the High Court of Jammu & Kashmir and Ladakh challenging his detention order under the Jammu and Kashmir Public Safety Act, 1978. 
  • The detention order was issued on 1st February 2024, by the District Magistrate of Pulwama. 
  • The petitioner was previously arrested and booked in FIR under multiple sections including Arms Act and Unlawful Activities (Prevention) Act, 1967 (UAPA) at Police Station Tral, Pulwama. 
  • On 11th September 2023, a Designated Court under National Investigation Agency Act (NIA Act) dropped several serious charges against him, though some charges remained. 
  • The petitioner was subsequently granted bail on 4th November 2023, with multiple conditions including requirements not to repeat offences, not leave the territorial jurisdiction without permission, and restrictions regarding mobile device usage. 
  • The bail order specifically provided that any breach of conditions could result in cancellation of bail if reported to the court by investigating authorities. 
  • According to authorities, after his release on bail, the petitioner allegedly resumed activities deemed prejudicial to state security, which prompted his detention under preventive detention laws. 
  • The authorities claimed Wani was working as an Underground Worker (OGW) for a terrorist organization, providing logistics and shelter to terrorists. 
  • The petitioner challenged the detention order on multiple grounds, including that authorities should have sought cancellation of bail rather than resorting to preventive detention. 
  • The petitioner also argued that the grounds for detention were vague and ambiguous, lacking specific details of alleged activities, which prevented him from making an effective representation against his detention. 
  • On 11th September 2023, the Trial Court dropped several serious charges against Manzoor Ahmad Wani, specifically offences under Sections 17, 18, 19, and 39 of the UAPA. 
  • The court maintained the offence under Section 13 of the UAPA. 
  • The writ petition was filed before the Jammu & Kashmir High Court. 

What were the Court’s Observations? 

  • The J&K High Court made the following observations: 
    • The High Court observed that the prosecution never sought cancellation of the petitioner’s bail despite having the explicit liberty to do so under the lower court's order. 
    • The court noted that the authorities failed to explain why they chose preventive detention instead of seeking bail cancellation. 
    • The High Court found that the authorities took a "shortcut method" by using preventive law instead of ordinary law procedures. 
    • The court observed that proceedings under Section 107 Code of Criminal Procedure, 1973 (CrPC) (security for keeping the peace) were allegedly initiated, but detention records didn't show these proceedings were actually pursued. 
    • The High Court determined that the grounds for detention were "vague and cryptic," failing to provide specific details, dates, and particulars of the alleged activities. 
    • The court concluded that these vague grounds deprived Wani of his ability to make an effective representation against his detention, violating his constitutional rights. 
  • The High Court ultimately quashed the detention order and directed authorities to release the petitioner unless he was required in any other case. 

What is Preventive Detention? 

  • Preventive Detention means the detention of a person without trial and conviction by a court. Its purpose is not to punish a person for a past offence but to prevent him from committing an offence in the near future.   
  • The key laws relating to preventive detention are:  
    • Maintenance of Internal Security Act, 1971 (MISA)  
    • Foreign Exchange Conservation and Prevention of Smuggling Activities, 1974 (COFEPOSA)  
    • Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA)  
    • Prevention of Terrorist Activities Act, 2002 (POTA)  
    • Unlawful Activities (Prevention) Act, 2008 (UAPA)  

What is Article 22 of COI?  

  • Article 22 of the COI provides for protection against arrest and detention in certain cases.  
  • Article 22 of COI has two parts-   
    • The first part deals with ordinary law (Article 22 (1) and (2)). 
    • The second part deals with cases of preventive detention. 

Provision 

Contents 

Article 22 (1) 

Every person who is arrested shall be:  

Informed as soon as may be grounds of arrest.  

An arrested person shall not be denied the right to consult and to be defended by a legal practitioner of his choice. 

Article 22 (2) 

This provision provides that a person detained in custody should be produced before the nearest Magistrate within the period of twenty-four hours of arrest excluding the time of journey.  

No person shall be detained in custody beyond the period mentioned above without the authority of Magistrate.  

Article 22 (3) 

This provision provides that Clause (1) and Clause (2) shall not apply to:  

Enemy Alien. 

Arrested or Detained under any law providing for Preventive Detention. 

Article 22 (4) 

This provision provides that no law of preventive detention shall authorize detention for a period greater than three months unless:  

An Advisory Board gives the opinion that there is sufficient cause for detention.  

Persons in Advisory Board should be ones who are qualified to be appointed as the Judges of a High Court.  

The proviso provides that the detention period shall not be beyond the period prescribed by any law made by the Parliament.  

Such person is detained in accordance with the provisions of any law made by the Parliament under clauses (a) and (b) of clause (7). 

Article 22 (5) 

This provision provides for rights of a person detained under any law of preventive detention:  

Every detenue shall be communicated the grounds on which detention is made.  

Every detenue shall be afforded earliest opportunity of making representation against the order of detention  

Article 22 (6) 

Under Clause (5) no such facts will be disclosed which would be against the public interest. 

Article 22 (7) 

This provision provides that the Parliament may by law prescribe:  

The circumstances under which class or classes of cases, a person may be detained for a period longer than 3 months without obtaining the opinion of Advisory Board.  

The maximum period for which a person may be detained under a preventive detention law  

The procedure to be followed by the Advisory Board in an inquiry under sub-clause (a) of clause (4).