Final Order:

1. Heard both sides finally with their consent.

2. Appellants are taking exception to the judgment and order dated 28.03.2018 passed in Civil Appeal No.26 of 2014, remanding the matter to the Executing Court. They are decree holders. Respondent Nos. 1 to 8 are the obstructionists/ objectors. The respondent Nos. 9 to 12 are the judgment debtors.

3. Appellants secured decree of possession in R.C.S. No. 90 of 2005 on 30.08.2010 against the respondents/judgment debtors after full fledged contest. The decree was put to execution in R.D. No. 19 of 2010. They were handed over possession on 13.04.2011. Application Exhibit 14 was submitted by the objectors before the Executing Court complaining illegal dispossession while execution of the decree. They claimed to have independent right and interest in the subject matter. Their application was rejected on 13.04.2011. The order is sought to be reviewed by application Exhibit 20, which is also rejected on 12.02.2014. The orders below Exhibit 14 and 20 are subjected to challenge in R.C.A. No. 26 of 2014, in which impugned judgment is passed.

4. Learned counsel for the appellants submitted that impugned order of remand is perverse and absolutely no case is made out by the objectors for invoking the power under Order XXI Rule 99 of the Code of Civil Procedure (for the sake of brevity and convenience hereinafter referred as to the “C.P.C.”). It is submitted that after lapse of three years objectors filed application Exhibit 14 and 20, when possession was handed over to appellants on 13.04.2011. It is further submitted that it would be abuse of process of law to relegate the parties to the Executing Court when the objectors did not assert their right timely by intervening in R.C.S. No. 90 of 2005.

5. Conversely, learned counsel Mr. Shah appearing for the respondents/objectors vehemently submitted that objectors are co-sharers and subject matter is not the exclusive property of the decree/holders. They have independent right, title and interest, which cannot be denied. It is further submitted that Executing Court did not follow due procedure of law when application under Order XXI Rule 99 of the C.P.C. was submitted by them. No opportunity of hearing was given and, therefore, order of remand is perfectly justified. It is further submitted that the judgment debtors had handed over possession to them on 08.12.2009 being co-sharers. It is further submitted that in view of the undertaking dated 05.02.2019, the omission to bring legal heirs of respondent Nos. 2 and 5 would not be an impediment.

6. Following substantial questions of law are framed :

                   (i) Whether application filed by the respondent U/O XXI Rule 97 of the C. P. C. by the third parties, who are the respondents was maintainable as well as consequential Civil Appeal No. 26 of 2014 was maintainable ?

                   (ii) Whether impugned order of remand passed by the lower Appellate Court is sustainable, when respondents had no authority to file application U/O XXI Rule 97 of the C. P. C. and matter could have been examined and dealt with by the lower Appellate Court itself instead of remanding the matter to the Trial Court?

7. Appellants/decree holders had filed R.C.S.No.90 of 2005 for eviction under the provisions of the Maharashtra Rent Control Act (for the sake of brevity and convenience hereinafter referred as to the “Rent Act”) against the respondents/judgment debtors. The subject matter was one room of CTS No. 437-C situated at Hat Darwaja, Nandurbar. The parties had led evidence. After giving due opportunity of hearing suit was decreed vide judgment dated 30.08.2010. No appeal was preferred against it. It was not brought to the notice of the Trial Court that the judgment debtors handed over possession of the suit premises on 08.12.2009 to the objectors being co-sharers. The objectors also did not intervene before Trial Court.

8. Issue of non joinder of necessary party was framed by the Trial Court. While answering the issue it was recorded that Jagannath was father-in-law of appellant No.1. His brother Rupchand had also share in the property and Jaganath’s heirs who were prosecuting the suit were not the exclusive owners, but co-sharers. The decree holders were treated to be landlords having locus to prosecute the suit. It is pertinent to note that the decree did not confer any title exclusively upon the decree holders. The objectors claim to be legal heirs of co-sharer Rupchand. There are interse disputes between the decree holders and objectors, which led to filing of application under Order XXI Rule 99 of the C. P. C.

9. It is necessary to look into the findings recorded by the Trial Court for answering issue No. 6 in para Nos. 62 and 63, which are as follows :

                   “62. On the side of defendants they have placed the reliance on the case law Amrut Bhikaji V/s. Kashinath Janardan AIR 1983 SC. 643. The question in the reported case was relating to the dispute under the provisions of Bombay Tenancy and Agricultural Land Act as to the question of deemed possessor as on the tillers day. With the due respect here there is no such question involved in the present case. Hence, with due respect the above cited case law is not with assistance to the defendants.

                   Here, considering the facts and the circumstances here the evidence before me is sufficient to hold that the plaintiffs are the co-sharers in the suit property and the said fact is sufficient to holds that they are having right and interest towards the suit property. It is not desirable to go in to the roots of the title as concerned and here it has to be seen that whether the plaintiffs can be held to be a landlord. In this context the definition of the landlord is given under section 7(3) of the Maharashtra Rent Control Act, 1999. On minutely going through the said definition the person is a landlord who is entitled to receive the rent in the wide scope means a person a landlord as defined under the Act. Ultimately. considering the definition contemplated under this Act coupled with the pleading of the defendant as discussed above and the evidence it has been sufficiently been pleaded that the plaintiff is not the sole owner and they are also the legal heirs. So, squarely it can be said that the plaintiffs are entitled to get the rent from the defendant/tenants. Hence, in such circumstances, there is a reason to believe that the plaintiffs are the land lord and hence, in such circumstances the plaintiffs are having the locus standi to file the present suit.

                   63. Here, so far as the question of non joinder of necessary parties is concern, as per the defendant the other legal heirs of the decease Jagannath are not made the parties being the owners along with the plaintiffs. Hence, the suit is not maintainable in the eyes of law. Here, it is to be noted that the previous suit was filed by deceased Jagannath and after his demise his son and daughters were litigating the said suit under the title of Jagannath. Thus, they are said to be the co-owners. Moreover the learned counsel for the defendant has pithily argued that the aunts of the present plaintiff that is, the sisters of the husband of plaintiff No.1 are the necessary parties, but they are not made the parties. Here, there is sufficient evidence to show that the present plaintiffs are the co-owners of the suit property. Moreover, they can be said to be the joint landlords. On the principal that singular includes the plural two or more persons can together constitutes a 'landlord'. Two or more persons jointly entitle legally and beneficiary to the property can be termed as a 'landlord'. Thus, where the premises belong to Hindu Joint family of which the person who filed the suit for eviction was one of the brothers as co-owner, then, the brother was entitled to receive the rent and therefore, he is the landlord. In the present case, there is sufficient evidence on record to show that the present plaintiffs are entitled to receive the rent and in this case there is no dispute between the other legal heirs of deceased Jagannath or more over, they have not come forward in the present matter. So, in such circumstances, I am inclined to say that as the present plaintiffs are the landlord and considering their status as discussed above, I hold that it cannot be said that the suit is not maintainable without making the other legal heirs of the deceased Jagannath as a party as not making them as a party would not materially affect the tenant as the tenant do not have any vested interest in the property.”

10. The possession was handed over to the decree holder on 13.04.2011 in R.D. No. 19 of 2010. Even in the execution which was pending for almost three years, it was not disclosed by the judgment debtors that they had ever handed over possession on 08.12.2009 to the objectors. Almost after three years application Exhibit 14 was filed under Order XXI Rule 99 of the C. P. C. As the decree was satisfied, the Executing Court did not entertain the application and resort to procedure under Order XXI Rule 99 of the C. P. C.

11. The tenor of application Exhibit 14 shows that objectors claim to be the co-owners being heirs of Rupchand. They are expected to disclose legal right, title and interest to object the decree of eviction. The controversy before the Trial Court in a suit filed by the decree holder pertains to the eviction of a tenant under the provisions of the Rent Act. The Trial Court was not deciding the ownership of the persons who are claiming to be the landlords. It was not the purport of the Trial Court to declare decree holders as exclusive owners in derogation with the claim of the co-sharers.

12. It reveals from the application Exh.14 that the objector was in possession of the suit premises as the judgment debtor had handed over possession on 08.12.2009. When they received possession the suit was pending. The judgment debtor as well as objectors should have brought this fact to the notice of the Trial Court. Even this fact was not brought to the notice of the executing court promptly. The conduct of the objectors is doubtful.

13. When application is presented under Order 21 Rule 97 or 99 of the C.P.C., it is imperative for executing court to examine the nature of the rights claimed by the objectors, the nature of the proceedings of which a decree is solicited to be executed and the locus of the objectors. It is equally necessary for the executing court to examine as to whether objector or the judgment debtor had any opportunity to disclose their right or interest created in them on any earlier occasion. The prejudice likely to be caused to them is also relevant aspect of the matter. If the executing court is satisfied that independent right title or interest exists then further procedure almost like a suit needs to be undertaken. The executing court has to be cautious because there is every possibility of protraction of execution by proxy claims or attempts to deprive decree holder from fruits of decree by unsuccessful party. Its not that every resistance or claim for restoration of possession would partake the enquiry under Rule 97 to 102 of Order 21 of C.P.C.

14. In the present case, due to the conduct of the objectors their claim becomes doubtful and summary rejection of their applications cannot be said to be arbitrary.

15. Learned counsel for the appellants Mr. Sancheti has relied on the judgment of Jagdish Motilal Joshi Vs. Chandrapal Tulsiram Bhola [2007 (Supp.) Bom.C.R.198]. Like in the present case in that case also after securing decree for possession in a summary suit, the execution was under way and the objector happened to be daughter-in-law of the judgment debtor had submitted application under Order 21 Rule 97 of C.P.C. before the executing court which was rejected by the executing court. Being aggrieved appeal was preferred and the Appellate court quashed the order impugned and remanded the matter to the executing court for conducting hearing of the matter by following due procedure of law. Appeal was directed against order of remand. Following are the relevant extracts :

                   “16. On showing by the objector, the question that falls for consideration is whether the respondent No. 2 has a status of independent of the judgment debtor, and this question stands governed by the pleadings and record and is answered in negative. Had the answer of above answered question been in affirmative, enquiry on other issues as to whether and in what right, the objector claims to be in possession would have become necessary. If the need of enquiry is found and enquiry is opened in that eventuality, the objection would take the status of a suit, where all issues on merit of objector's right, title and interest need to be tried and decided with right of first and second appeal.

                   17. The scope and nature of enquiry shall always depend on the nature of claim of source of title, which an objector pleads. Now on facts, this Court finds on showing by the objector that she has no independent status and enquiry of fact finding as to her status becomes wholly un-necessary. On her showing, she is an imposter to be an objector in disguise. It can be concluded on the very face of it that the objector is set up by the judgment debtor. Even as an independent trespasser during the pendency of suit, the objector does not have a claim against a rightful claimant who has a decree in his favour. Law, equality or any other known or newly emerged doctrine do not come to the rescue of the objector respondent No. 2 herein.

                   18. In the present case, it is seen on facts that on showing by the applicant, she has no independent right, title and interest and no issue at all arise for enquiry. It would, therefore, be unjust and contrary to the scheme of law to hold that notwithstanding what is the status of objector a fullfledge enquiry like in a suit would be warranted. A contrary view would amount to permitting abuse of process of law. Objector's status that she claims through Judgment Debtor is clear and is seen even without enquiry of any time for the purpose of lifting veil.”

The ratio laid down as above is applicable. Additionally the conduct of the objector is found to be doubtful and vulnerable.

16. Further reliance is placed on the judgment of Abdul Khalil Sk. Karim Vs. Syed Mustaque Syed Karamat Ali in AO No.37 of 2016 by the appellant. In that case appeal from order was preferred against order of remand passed by the Lower Appellate Court which was arising out of the rejection of the objection petition in the execution proceeding. In that case also the eviction proceeding was initiated by landlord against the tenant. Following are the relevant extracts :

                   “8. In Jagdish Motilal Joshi (supra) it has been held that the nature and source of title of the objector is required to be disclosed where objection is raised in the execution proceedings. If on the basis of facts on record, it is found that the objector has no independent status then there is no reason to make a detailed inquiry as contemplated by Rule 101 of Order XXI of the Code. In Dhanaraji Baburam Yadav and another (supra), it has been held that the executing Court should not permit flimsy, false and vexatious pleas raised by the obstructionist.

                   9. Considering the fact that the decree for possession against Karamat Ali attained finality and the respondent as legal heir of Karamat Ali tried to challenge the same unsuccessfully, it is clear that the plea regarding right having accrued on account of oral partition appears to be flimsy and frivolous. The appellate Court without considering these aspects of the matter misdirected itself when it remanded the proceedings for fresh adjudication. The decree having attained finality, there was no question of fresh opportunity being given to the respondent to raise such grounds that were available in the earlier round of litigation.”

17. Learned counsel Mr. Shah appearing for the respondents relies on the judgment of Jagannath Biraji Marwadi and another Vs. Khwaja Fasiuddin and others [AIR 1938 Nagpur 442]. The ratio laid down is distinguishable on facts. The objector in that case was a co-owner with judgment debtor himself and not a tenant. This judgment will not help the respondents. Further reliance is placed on the judgment of Noorduddin Vs. Dr. K. L. Anand [(1994) AIR (SCW) 5093]. I have gone through paragraph Nos.8, 9 and 10. Those principles are not doubted. But facts of the present case are different. This Court has benefit of the exposition of law and approach to be taken in the matters of execution as depicted in paragraph No.9.

18. Further reliance is placed on the case of Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal and another [(1997) AIR (SCW) 685]. I have gone through paragraph Nos.5 and 6. Those expositions of law cannot be doubted. But those are distinguishable on facts. In the present matter, I have observed that conduct of the respondents is not befitting. Hence, this judgment will not help them. Further reliance is placed on the case of Tanzeem-E-Sufia Vs. Bibi Haliman and others [(2002) AIR (SCW) 3548]. I have gone through paragraph Nos.13 and 14 of the judgment. Those principles are not doubted but they cannot be made applicable in the present case.

19. They have also relied on the judgment of T. Raghavan Nair Vs. Brij Mohan P. Sethi and others [2003(2) Mh.L.J. 762]. In that case the sub-tenant had approached for restoration of possession of the suit premises whose tenancy was legalized. Hence he was held to be entitled to restoration of the possession by invoking powers under Order 21 and Rule 99 of the C.P.C.. The facts are distinguishable. This judgment will not help the respondents. Further reliance is placed on the matter of J. Balaji Singh Vs. Diwakar Cole [(2017) AIR (SCW) 2402]. The scope of power of remand of the Appellate Court is depicted in paragraph Nos.23 to 27 of the judgment.

20. Further reliance is placed on Shamsher Singh and another Vs. Lieutenant Colonel [(2019) 17 Supreme Court Cases 279]. In that case the objector was claiming a right on the basis of plea of adverse possession. The facts are distinguishable and those cannot be made applicable to the present case.

21. It is useful to refer to the judgment of three Judges Bench of Supreme Court in the matter of Silverline Forum Pvt. Ltd. vs Rajiv Trust And Another [(1998) 3 SCC 723]. Following are the relevant extracts :

                   “11. When a decree-holder complains of resistance to the execution of a decree it is incumbent on the execution court to adjudicate upon it. But while making adjudication, the court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such questions must be relevant to the adjudication of the complaint.

                   12. The words "all questions arising between the parties to a proceeding on an application under Rule 97" would envelop only such questions as would legally arise for determination between those parties. In other words, the court is not obliged to determine a question merely because the resistor raised it. The questions which executing court is obliged to determine under rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g. if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. similarly, a third party, who questions the validity of a transfer made by a decree-holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructor must legally arise between him and the decree- holder. In the adjudication process envisaged in order 21 Rule 97(2) of the Code, the execution court can decide whether the question raised by a resistor or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section.

                   13. In the above context we may refer to Order 21 Rule 35(1) which reads thus:

                   "35. (1) 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 too 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."

                   14. It is clear that executing court can decide whether the resistor or obstructor is a person bound by the decree and he refused to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. The Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to adduce evidence for such determination. If the Court deems it necessary.”

22. Present case is squarely covered by the principles laid down in the cited judgments. The claim of the respondents in the case at hand is frivolous. The decree has attained finality and the possession has also been handed over to the decree holder. The Appellate Court acted against settled legal position that it should be circumspect in ordering remand and casual approach results in prolonging litigation. The injustice to appellant is manifest.

23. The executing court should have decided applications Exh.14 and 20 by assigning more elaborate reasons. The appellants have been handed over possession on 13.04.2011. It would not be appropriate to direct the executing court to conduct re-hearing of the application Exh.14. No prejudice can be said to have been caused to the respondent/objector.

24. In above circumstances, I find that it would be abuse of process of law for the respondents to resort to Order 21 Rule 99 of the C.P.C.. The substantial questions of law framed vide order dated 16.10.2025 need to be answered in favour of appellants. Impugned order is unsustainable as the Appellate Court has committed error of jurisdiction. I, therefore, pass following order :

ORDER

(i) Appeal from order is allowed.

(ii) Impugned judgment and order dated 28.03.2018 in Civil Appeal No. 26 of 2014 by District Judge – 1, Nandurbar is quashed and set aside confirming the orders passed below Exhibit 14 and 20 by the Executing Court.

(iii) There shall be no order as to costs.

(iv) In view of disposal of Appeal from Order, pending civil application does not survive. Civil application as such is disposed of.