The Supreme Court in the case Smt. Ved Kumari (the Dead Through Her Legal Representative) Dr. Vijay Agarwal vs Municipal Corporation of Delhi observed and has ruled that the Executing Court cannot dismiss an execution plea moved by treating the decree for possession as inexecutable, which being merely on the basis that the property has been lost to a third party or encroacher.
The bench comprising of Justice B.V. Nagarathna and Justice Prashant Kumar Mishra in the case observed while hearing the appeal against the decision of the Delhi High Court who had affirmed the order of the Executing Court, while holding that the decree for possession of immoveable property was not executable against the judgment-debtor, i.e., the Municipal Corporation of Delhi, MCD.
It being the case of Municipal Corporation of Delhi, MCD that the suit land originally leased to it by the decree-holder was not under its possession, and that the same was in the possession of the encroachers who should have been identified by the decree-holder in the matter.
The Supreme Court in the case observed and has held that it being the duty of the Executing Court to issue warrant of possession for effecting physical delivery of the suit land to the decree-holder. Further, if any resistance is offered by any stranger or the encroacher to the decree and the same has to be adjusted upon by the Executing Court in accordance with Rule 97 to Rule 101 of Order XXI of the Code of Civil Procedure, 1908, CPC.
It has also been stated by the said court that unless the said procedure is adopted, thus, the Executing Court could not have closed the execution proceedings by observing that the decree is inexecutable.
The court while considering the facts and circumstances of the case observed and has directed the Executive court to execute the decree by effecting delivery of physical vacant possession to the appellant or the decree-holder in accordance with the provisions contained in Order XXI of the Code of Civil Procedure. Further, the court observed and has set side the order of the Executing Court and the High Court. Accordingly, the court allowed the appeal.
The counsel, Sr. Adv. Mr. Gopal Sankaranarayanan, AOR Mr. Senthil Jagadeesan, Adv. Mr. Adit S Pujari, Adv. Ms. Maitreya Subramaniam, Adv. Ms. Mantika Vohra, AOR Mr. Praveen Swarup, Adv. Mr. Praveen Swarup, Adv. Mr. Devesh Maurya, Adv. Ms. Payal Swarup, Adv. Mr. Chander Shekher Malhotra, Adv. Mr. Vivek Verma, Adv. Mr. Hari Sahteshwar appeared for the parties.
