SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. ____________ OF 2023
(Arising out of SLP(C) Nos. 12601-12602 of 2017)
SMT. VED KUMARI
(DEAD THROUGH HER LEGAL REPRESENTATIVE)
DR. VIJAY AGARWAL …. APPELLANT
VERSUS
MUNICIPAL CORPORATION OF DELHI
THROUGH ITS COMMISSIONER ... RESPONDENT
15. In view of the settled legal position, as noted (supra), it
was the duty of the Executing Court to issue warrant of
possession for effecting physical delivery of the suit land to the
decree-holder in terms of suit schedule property and if any
resistance is offered by any stranger to the decree, the same
be adjudicated upon in accordance with Rules 97 to 101 of
Order XXI of the CPC. The Executing Court could not have
dismissed the execution petition by treating the decree to be
inexecutable merely on the basis that the decree-holder has
lost possession to a third party/encroacher. If this is allowed to
happen, every judgment-debtor who is in possession of the immoveable property till the decree is passed, shall hand over
possession to a third party to defeat the decree-holder’s right
and entitlement to enjoy the fruits of litigation and this may
continue indefinitely and no decree for immovable property can
be executed.
16. In the result, the appeals succeed and are allowed.
Accordingly, the judgment and orders dated 07.04.2016 and
04.11.2016 passed in C.R.P No. 152 of 2012 and R.P No. 487
of 2016 respectively by the High Court of Delhi and the order of
the Executing Court dated 11.09.2012 are set aside and the
Executing Court is directed to execute the decree by effecting
delivery of physical vacant possession to the appellant/decreeholder in accordance with the provisions contained in Order XXI
CPC. The parties shall bear their own costs.
………………………………………J.
(B.V. NAGARATHNA)
………………………………………J.
(PRASHANT KUMAR MISHRA)
AUGUST 24, 2023.
NEW DELHI.
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