Source: Bombay High Court 

Why in News? 

Recently, the Bombay High Court in the matter of Mr. Momin Zulfikar Kasam v. Ajay Balkrishna Durve & Anr.  has held that as per the amendment in the Code of Civil Procedure, 1908 (CPC) transferee of right is entitled for execution of the decree without an assignment of decree.   

What was the Background of the Mr. Momin Zulfikar Kasam vs. Ajay Balkrishna Durve & Anr. Case?

• In this case, the plaintiff let out the suit premises to the defendant based on an agreement of license which came to an end hence plaintiff asked for the possession of the premises. 
• Even after several notices the defendant did not comply with the notices. 
• The plaintiff filed a suit for the eviction of respondent before the Competent Authority under Section 24 of the Maharashtra Rent Control Act, 1999 seeking eviction of the defendant. 
  • The defendant filed an objection petition objecting that the Competent Authority does not have jurisdiction to decide the matter which was dismissed by the Competent Authority. 
• The plaintiff filed a suit for the eviction of respondent before the Small Cause Court. 
  • Small Cause Court decreed in favor of plaintiff and ordered defendant warrant of possession. 
• The defendant, aggrieved by the decision, filed an appeal before the Appellate Small Cause Court which was dismissed by the Appellate Court. 
• Plaintiff then filed an execution application before the Small Cause Court which was opposed by the defendant while the Execution Decree was passed by the Small Cause court in favor of the plaintiff under Order XXI Rule 35 of warrant of possession of the CPC. 
• The defendant filed an objection petition before the Small Cause Court objecting that the court does not have jurisdiction to pass the execution decree in view of the provisions of Section 22 of the Maharashtra Rent Control Act and also prayed for stay of possession warrant is still pending while the application of stay on warrant of possession, was rejected by the court. 
• The defendant further filed a revision petition before the Appellate Court which allowed the petition for the stay on warrant of possession and set aside the decree passed by Small Cause Court by staying the warrant of possession stating that mere transfer does not amount to assignment of the decree as per Order XXI Rule 16 (O21 R16) of CPC, 1908. 
• Aggrieved by the decision of the Appellate Court plaintiff filed an Appeal before the Bombay High Court. 

What were the Court’s Observations? 

• It was observed by the Bombay High Court that the Appellate Court has applied Order XXI R16 of CPC but has failed to apply the amended provision which enables the transferee to file for an execution of decree without a separate assignment of decree. 
• The court also clarified that nothing under Order XXI R16 affects Section 146 of CPC. 
• It was also settled by the High Court that all the questions relating to execution of decree shall be satisfied by the executing court and not by filing separate suit as per the provisions of Section 47 of CPC. 
• It was noted by the court that the Appellate Small Cause Court has committed a grave error in setting aside the order of the Executing Court and staying the warrant of possession. 
• Therefore, the court upheld the decision of the Small Cause Court/ Executing Court and allowed the appeal filed by the plaintiff. However, the objection petition of defendant on jurisdiction is pending before the Small Cause Court. 

What is Order XXI of CPC? 

• About: 
  • This order gives a complete procedure of execution of a decree. 
  • It states that a decree must be signed by the judges delivering it and then must be recorded in a register by the court. 
  • It is the longest order under CPC covering 106 Rules.  
  • The Execution decree is open for inspection by the parties. 
• Various Modes of Executing a Decree: 
  • Attachment and Sale of the Property. 
  • Arrest & detention 
  • Appointment of a receiver. 
  • Delivery possession. 
• Procedure for Filing Under Order 21 
  • An application shall be filed by Judgement creditor before the Executing Court. 
  • The Executing Court shall issue a notice to the Judgement Debtor. 
  • The Court shall execute the decree after all necessary examinations and may issue warrants, attach property, order arrest, or take any other necessary measures for the decree's execution. 

What are Important Rules & Sections of CPC, 1908 Referred in Mr. Momin Zulfikar Kasam v. Ajay Balkrishna Durve & Anr Case? 

• Section 47: Questions to be determined by the Court executing decree 
  • Clause (1) states that all question arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.  
  • Clause (3) states that where a question arises as to whether any person is or is not the representative of a party, such a question shall, for the purposes of this section, be determined by the Court. 
  • Explanation: the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed, are parties to the suit. 
• Section 146: Proceedings by or against representatives. - 
  • Save as otherwise provided by this Code or by any law for P the time being in force, where any proceeding may be taken or by application made by or against any person, then the proceeding may t be taken or the application may be made by or against any person claiming under him. 
• Order XXI Rule 16: Application for execution by transferee of decree 
  • This rule states that where a decree or, if a decree has been passed jointly in favor of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder. 
  • Provided that, where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution. 
  • Provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others.  
  • An explanation added by amendment that nothing in this rule shall affect the provisions of section 146, and a transferee of rights in the property, which is the subject matter of the suit, may apply for execution of the decree without a separate assignment of the decree as required by this rule. 
• Order XXI Rule 35: Decree for immovable property - 
  • Clause (1) states that where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property. 
  • Clause (2) states that where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree. 
  • Clause (3) states that where possession of any building on enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession. 

What are Landmark Judgements on the Applicability of Order XXI? 

• Jugal Kishore Saraf v. Raw Cotton Co. Ltd (1955): In this case it was held that transferee of rights in the property is not entitled to apply for execution of the decree in absence of separate assignment of the decree. It is a bad law after the amendment in the Code (CPC). 
• Vaishno Devi Construction v. Union of India (2022):  The Supreme Court in this case held that transferee of rights in the property is entitled to apply for execution of the decree in absence of separate assignment of the decree.