Alladin Charities and Zakat Wakf v. Mohammed Saleem
“Wrong Provision, Right to a Hearing: Third-Party Objector in Execution of a Decree Entitled to a Full Inquiry Under Order XXI Rule 97 CPC”
TL;DR
The Supreme Court allowed the appeal of Alladin Charities and Zakat Wakf, a third-party objector resisting execution of an ex parte decree for specific performance concerning shop property at Rikabgunj, Pathergatti, Hyderabad, and remanded the matter to the VII Senior Civil Judge, City Civil Court, Hyderabad. The Executing Court and the High Court had dismissed the claim petition mainly because the objector failed to prove title and because it had invoked Order XXI Rule 58 CPC instead of Rule 97. The Supreme Court set aside both orders, noting that findings did not conform to well-established principles of law (relying on the principles in Periyammal (Dead) through LRs v. V. Rajamani as summarised by the appellant), and directed the Executing Court to allow fresh pleas from both sides, conduct a fresh inquiry and dispose of the matter afresh. The decree-holder's counsel himself suggested a remand.
The Bottom Line
A stranger who resists execution of a decree for possession is entitled to a proper inquiry into his rights, and a claim should not be thrown out merely because the wrong provision was cited or because the burden was placed wrongly on the objector. The Supreme Court set aside the orders refusing the Wakf Trust's objection and sent the matter back to the Executing Court to decide it afresh after allowing both sides to file additional pleas and evidence. It did not decide who owns the property.
Case Timeline
The journey from FIR to Supreme Court verdict
Suit for Specific Performance Filed
Respondent No. 1 filed O.S. No. 2204 of 2012 for specific performance of the Agreement dated 23.02.2001 and possession.
Suit for Specific Performance Filed
Respondent No. 1 filed O.S. No. 2204 of 2012 for specific performance of the Agreement dated 23.02.2001 and possession.
Ex Parte Decree
The City Civil Court decreed the suit ex parte, as Respondent No. 2 remained absent, directing execution of a sale deed and delivery of possession.
Ex Parte Decree
The City Civil Court decreed the suit ex parte, as Respondent No. 2 remained absent, directing execution of a sale deed and delivery of possession.
Execution Petition Filed
The decree-holder filed E.P. No. 4 of 2016 seeking delivery of physical possession of the suit property.
Execution Petition Filed
The decree-holder filed E.P. No. 4 of 2016 seeking delivery of physical possession of the suit property.
Third-Party Objection by the Trust
Alladin Charities and Zakat Wakf filed E.A. No. 94 of 2016, resisting execution as a stranger to the decree and claiming title through a Farman, a 1949 Muntakhab and a 1976 Trust Deed.
Third-Party Objection by the Trust
Alladin Charities and Zakat Wakf filed E.A. No. 94 of 2016, resisting execution as a stranger to the decree and claiming title through a Farman, a 1949 Muntakhab and a 1976 Trust Deed.
Executing Court Dismisses the Claim Petition
The Executing Court held that ownership was not proved, that Order XXI Rule 58 CPC was not maintainable, and that identity of the property with that in O.S. No. 59 of 2002 was not established.
Executing Court Dismisses the Claim Petition
The Executing Court held that ownership was not proved, that Order XXI Rule 58 CPC was not maintainable, and that identity of the property with that in O.S. No. 59 of 2002 was not established.
Supreme Court Allows Appeal and Remands
The Supreme Court set aside the impugned judgments and remanded the matter to the Executing Court for fresh disposal after allowing fresh pleas and evidence from both sides.
Supreme Court Allows Appeal and Remands
The Supreme Court set aside the impugned judgments and remanded the matter to the Executing Court for fresh disposal after allowing fresh pleas and evidence from both sides.
The Story
Respondent No. 1 filed O.S. No. 2204 of 2012 before the VII Senior Civil Judge, City Civil Court at Hyderabad, seeking specific performance of an Agreement dated 23.02.2001, said to have been executed by Respondent No. 2 (the agreement is described as executed by Ali Ahmed, father of Respondent No. 2, for a sum of Rs. 8,00,000, said to have been paid in cash, in respect of 375 sq. yards of land at Pathergatti). Respondent No. 2 remained ex parte, and the suit was decreed on 18.03.2015, with a direction to execute and register a sale deed and a right to possession of the suit schedule property, being Old Municipal No. 634 (New Municipal No. 21-1-1098/9/10/11), shops admeasuring 373 sq. yards at Rikabgunj, Pathergatti, Hyderabad.
On 05.01.2016 the decree-holder filed E.P. No. 4 of 2016 for delivery of physical possession. Alladin Charities and Zakat Wakf, through its Managing Trustee, filed E.A. No. 94 of 2016 resisting execution as a stranger (third-party objector). It claims title through a Farman Mubarak of the then Nizam of Hyderabad, a Muntakhab of 06.06.1949 describing the Mecca Madina Building, and a Trust Deed of 23.09.1976 covering about 3151.51 square yards. It also relied on earlier proceedings under the Waqf Act, 1995 and litigation against Hamid Ali and others, including Writ Appeal No. 983 of 2001, dismissal of SLP (Civil) Nos. 2351-2352 of 2002, and A.P. Gazette Notification No. 47 Part II dated 20.11.2003 declaring certain mulgies under the Appellant's control. The decree-holder claimed through a 1943 sale deed (Document No. 69 of 1353 Fasli) in favour of Ali Ahmed, father of Respondent No. 2.
By order dated 29.01.2019 the Executing Court dismissed the claim petition, holding that the objector failed to prove ownership of the specific schedule property (as Municipal Nos. 21-1-1098/9 to 11 were not expressly listed in the Gazette Notification and the Farman, Survey Commission Report and trustee authorisation were not filed), that a petition under Order XXI Rule 58 CPC was not maintainable as the E.P. sought delivery of possession and not attachment, and that identity with the property decided in O.S. No. 59 of 2002 was not established. The High Court for the State of Telangana dismissed CCCA No. 94 of 2019, adding that the Managing Trustee had no locus standi and had not shown authorisation, that the Appellant had not challenged the 1943 sale deed, and that the application ought to have been filed under Order XXI Rule 97 CPC. The Trust appealed to the Supreme Court.
Legal Issues
Click each question to reveal the Supreme Court's answer
Arguments
The battle of arguments before the Supreme Court
Petitioner
Vihaan Kumar
Wrong provision cited is not a ground to reject the objection; full inquiry required
Appearing for the appellant, Mr. C. Aryama Sundaram relied on Periyammal (Dead) through LRs v. V. Rajamani, summarised by him as follows: Order XXI Rule 35 allows removal of persons bound by the decree, while Rules 97 to 101 deal with resistance or obstruction by any person, including a stranger; Rule 97 applies before a decree for possession is executed and Rule 99 later, after dispossession; where a stranger resists, the decree-holder's remedy lies under Rule 97 and the court must conduct a full-fledged inquiry under Rule 101 into all questions including right, title or interest. He argued that quoting the wrong provision cannot defeat the prayer.
Identity of property and misplaced burden of proof
The appellant contended that the decisive factor was the identity of the property in old and contemporaneous revenue or municipal records, that the documents relied upon by the decree-holder were sketchy and did not defeat the appellant's title recognised in earlier rounds of litigation with Hamid Ali and others up to the Supreme Court, and that the boundaries in the 1943 Sale Deed and the Decree Schedule were distinct. It was argued that the burden was wrongly placed on the objector and that identity of property was not an issue in the suit. It sought a remand, or in the alternative, an opportunity to establish its claim on record.
Respondent
State of Haryana
No ground for interference; decree-holder entitled to possession under the decree
Mr. Basva Prabhu S. Patil, for Respondent No. 1, argued that no ground was made out for interference and that the decree-holder was taking possession of the property covered by the Agreement to Sell and the decree dated 18.03.2015.
Fair concession on correlation of schedules and suggestion of remand
In response to the Court's query whether the schedules in the 1943 Sale Deed, the Agreement of Sale and the Court-executed sale deed were correlated and established by documentary evidence, counsel fairly stated that the DHR's opinion was that the Third Party Objector had to discharge the burden. He suggested that the matter be remanded to the Executing Court and both parties be afforded an opportunity to file additional pleas and adduce additional evidence.
Court's Analysis
How the Court reasoned its decision
The judgment is brief. The Court recorded the background, the competing chains of title, the reasons given by the Executing Court and the High Court, and the submissions of both sides, but deliberately did not go into the detailed competing claims of the decree-holder and the third-party objector, saying that it had taken a particular view of the case and had heard senior counsel on both sides. Having noted the decree-holder's counsel's concession that the schedules in the old and new documents needed to be correlated and that the burden had been treated as lying on the objector, and his suggestion that the matter be remanded for additional pleas and evidence, the Court concluded that some of the findings recorded in the impugned judgments do not conform to well-established principles of law. It set aside both judgments and sent the matter back to the Executing Court to allow further or fresh pleas, hold a fresh inquiry in light of the decision referred to (Periyammal), and dispose of the matter afresh. The Court did not itself rule on title, identity of the property, the Managing Trustee's authorisation or the Waqf status of the property.
For the view we are proposing to take, and after hearing Mr. C. Aryama Sundaram and Mr. Basava Prabhu S Patil, learned Senior Counsel, we have not, in detail, referred to the competing claims of DHR and the Third Party Objector.
Para 7
The Court expressly refrained from deciding the competing title claims, leaving them for the Executing Court.
He suggested that the matter be remanded to the Executing Court and that both parties be afforded an opportunity to file additional pleas and adduce additional evidence in support of their respective claims.
Para 11
Records the decree-holder's own suggestion of a remand, which the Court adopted.
we are convinced that some of the findings recorded in the impugned Judgments do not conform to well-established principles of law.
Para 12
The stated basis for setting aside the Executing Court's and the High Court's decisions.
The Executing Court is directed to allow further or fresh pleas on behalf of both parties, conduct a fresh inquiry in light of the decision referred to above, and dispose of the matter afresh.
Para 12
The operative direction on remand.
The Verdict
Relief Granted
The Wakf Trust's objection to execution revived and will now be heard on merits after a fresh inquiry, with both the Trust and the decree-holder free to file additional pleas and evidence. The Supreme Court did not decide who owns the property.
Directions Issued
- The impugned judgments (of the Executing Court dated 29.01.2019 in E.A. No. 94 of 2016 and of the Telangana High Court in CCCA No. 94 of 2019) are set aside
- The matter is remanded to the VII Senior Civil Judge, City Civil Court at Hyderabad, to be disposed of afresh in accordance with law
- The Executing Court shall allow further or fresh pleas on behalf of both parties and conduct a fresh inquiry in light of the decision in Periyammal (Dead) through LRs v. V. Rajamani
- No order as to costs
- Pending applications, if any, stand disposed of accordingly
Key Legal Principles Established
A third-party objector to execution of a decree for possession is entitled to a proper adjudication of his objection and should not be turned away merely because a wrong provision of Order XXI CPC was cited.
As summarised from Periyammal (Dead) through LRs v. V. Rajamani, Order XXI Rule 35 deals with persons bound by the decree, while Rules 97 to 101 deal with obstruction or resistance by any person, including a stranger.
Where a stranger resists execution, the decree-holder's remedy lies under Order XXI Rule 97, and the court must conduct a full-fledged inquiry under Rule 101 into all questions, including right, title or interest in the property.
Findings on title and identity of property should follow a proper inquiry in which both sides are allowed to file pleas and adduce evidence.
An appellate court may set aside findings that do not conform to well-established principles of law and remand the matter for fresh disposal, particularly where the parties are agreeable to a remand.
Key Takeaways
What different people should know from this case
- If someone who was not a party to a court case is about to lose possession of property because of a decree against someone else, he can object during execution and is entitled to be heard.
- A claim cannot be rejected only because the application cited the wrong rule of procedure.
- This judgment does not say who owns the property; it only sends the dispute back to the lower court for a fresh and complete inquiry.
- Both sides will be allowed to file additional papers and evidence, so people involved should keep the title documents and records ready.
- The decree was passed ex parte, so a party who stays away from a suit may later find third parties contesting its execution.
Legal Framework
Applicable laws and provisions
Statutory Provisions
Order XXI Rule 97
Code of Civil Procedure, 1908
“Deals with resistance or obstruction to possession of immovable property in execution of a decree, allowing the decree-holder to apply for removal of the obstruction.”
Relevance: According to the Periyammal principles summarised in the judgment, where a stranger resists execution the decree-holder's remedy lies under this Rule, and the High Court noted that the application ought to have been filed under it.
Order XXI Rules 35, 99 and 101
Code of Civil Procedure, 1908
“Rule 35 relates to delivery of possession in execution of decrees; Rule 99 allows dispossessed persons to seek restoration; Rule 101 provides that questions, including those relating to right, title or interest in the property, arising between the parties are to be determined by the executing court.”
Relevance: The appellant relied on these provisions through Periyammal to contend that a full-fledged inquiry into right, title and interest was required.
Order XXI Rule 58
Code of Civil Procedure, 1908
“Governs adjudication of claims or objections to attachment of property.”
Relevance: The Executing Court and the High Court held that the claim petition under this Rule was not maintainable because the E.P. sought delivery of possession and not attachment.
Gazette notification and proceedings under the Act
Waqf Act, 1995
“Governs declaration and administration of Waqf properties through the Waqf Board.”
Relevance: The Trust relied on a declaration by the Chief Executive Officer of the Waqf Board and A.P. Gazette Notification No. 47 Part II dated 20.11.2003 to claim the property; the Court did not rule on these claims.
Related Cases & Precedents
Periyammal (Dead) Through Legal Representatives and Others v. V. Rajamani and Another
followed(2025) 9 SCC 568
Relied upon by the appellant on the scope of Order XXI Rules 35 and 97 to 101 CPC and the need for a full-fledged inquiry where a stranger resists execution; the Executing Court was directed to hold a fresh inquiry in light of this decision.
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