Executing Court Must Adjudicate Obstruction Petition With Full Trial If Claim Discloses Prima Facie Independent Right: Bombay High Court

“Where an obstructionist asserts a plausible independent right over auctioned property, the executing court is bound to adjudicate the claim by framing issues and permitting evidence—summary dismissal without inquiry is a jurisdictional error.”
This emphatic ruling was delivered by the Bombay High Court.

Justice Arun R. Pedneker allowed the second appeal filed by the mother of the judgment debtor, holding that the executing court’s summary rejection of her objection under Order XXI Rule 97 CPC, without framing issues or allowing her to adduce evidence on her claim of a 1/3rd share in the auctioned property, was “in breach of the adjudicatory obligations prescribed under the Civil Procedure Code”.

The Court set aside the concurrent findings of the Executing Court and the First Appellate Court, directing a remand for full-fledged adjudication of the objector’s claim, observing:

“The executing court erred in law in not framing issues and permitting the appellant to lead evidence to prove her case that the auctioned property is a joint family property purchased from the nucleus of joint family property.”

“Objector Is a Stranger to the Decree—Her Right Must Be Determined in Execution, Not Denied Without Inquiry”

The appeal stemmed from execution proceedings initiated in Special Darkhast No. 32 of 2017, where the decree holder sought to recover a money decree through sale of Plot No. 11, CTS No. 13159/17, Aurangabad. The objector—Kamal Jadhav, mother of the JD—asserted that the said property formed part of the joint family estate, acquired from the family’s business corpus left behind by her deceased husband, and that she was entitled to 1/3rd undivided share.

However, both the executing court and the appellate court dismissed her objection and application for framing of issues by holding the claim to be frivolous and collusive, based solely on oral arguments, without trial.

The High Court, reversing these findings, held:

“Once the appellant has claimed her 1/3rd independent right over the auctioned property by filing application under Order 21 Rule 97 CPC, demonstrating a prima facie claim, the executing court is duty-bound to frame issues and permit the obstructionist to lead evidence.”

“Executing Court Cannot Sidestep Duty to Frame Issues and Permit Evidence When Substantive Rights Are Asserted”

Referring to a catena of Supreme Court judgments—including Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal (1997), Silverline Forum v. Rajiv Trust (1998), and Sameer Singh v. Abdul Rab (2015)—the Court reiterated that Rules 97 to 103 of Order XXI CPC form a complete code for adjudicating claims of obstruction to possession, even by third parties.

Relying particularly on Brahmdeo Chaudhary, the Court emphasized:

“Adjudication under Rule 97 is mandatory where the obstructionist asserts any semblance of right—summary rejection without evidence is impermissible. The findings will bind the parties and bar future suits by res judicata.”

The Court clarified that “even strangers to the decree are entitled to invoke Rule 97 if they resist delivery of possession, and their claims must be tried as a suit.”

“Joint Family Nucleus Is Not Presumed—But When Circumstances Show Possibility, Objector Must Be Allowed to Prove Her Claim”

The objector had alleged that the property was purchased by the JD at the age of 27, after the death of his father, using family funds from the thriving cement business started by the deceased father. She also claimed that the family had maintained jointness, and she continued to reside in the disputed property.

Justice Pedneker observed:

“It is settled law that while there is no presumption that a property is joint merely because the family is joint, if the objector shows circumstances pointing to a joint family nucleus capable of acquiring the property, the burden shifts to the party asserting self-acquisition.”

Referring to the recent Supreme Court judgment in Angadi Chandranna v. Shankar (2025), and the Privy Council decision in Annamalai Chetti v. Subramaniam Chetti (1929), the High Court held:

“Where it is established that the JD was a young businessman inheriting family business and the objector claims that the purchase was from joint funds, these circumstances are sufficient to discharge the initial burden. The claim cannot be summarily brushed aside.”

“Delay in Filing Objection Not Fatal—Right Arises When Possession Is Threatened”

The respondent-auction purchaser had argued that the objector had not raised her claim during earlier stages of execution, including the initial attachment, proclamation, and confirmation of sale. However, the Court held that mere delay does not defeat a valid claim, especially when the objector is a stranger to the decree.

The Court observed:

“The objection arose when the warrant of possession was issued. The appellant is not a judgment debtor and cannot be faulted for not participating earlier. Her claim of 1/3rd share cannot be nullified on grounds of delay alone.”

The Court rejected the argument that the objector’s failure to object earlier showed collusion or bad faith, holding that “her residence in the property and familial relationship support her assertion of an independent share.”

Auction Sale to Proceed for Remaining Share – But Possession of Objector’s Alleged Share to Be Protected Pending Adjudication

Importantly, the Court did not stay the entire auction or invalidate the auction purchaser’s title but clarified that the auction will be binding only to the extent of the shares of JD and other coparceners, if any. The claim of the objector to 1/3rd undivided share is to be determined on evidence.

Justice Pedneker directed:

“The Executing Court shall frame issues, permit both sides to lead evidence, and adjudicate the claim of the objector within six months. Rights of auction purchaser remain preserved, subject to outcome of such adjudication.”

“Executing Court Erred in Law—Remand Necessary to Avoid Grave Prejudice”

Answering the substantial question of law framed in the appeal, the High Court held:

“Yes, the executing court erred in law by not framing issues and not permitting the objector to lead evidence to establish that the property was acquired from the nucleus of the joint family and that she holds an independent 1/3rd share therein. The summary dismissal was contrary to Order XXI Rules 97–101 CPC and violates the adjudicatory duty cast upon the executing court.”

Accordingly, the High Court allowed the second appeal, quashed the concurrent findings of the courts below, and remanded the matter for trial, directing completion within six months.

This significant decision by the Bombay High Court reaffirms the statutory and judicial mandate under Order XXI Rules 97–103 CPC, requiring full adjudication of obstruction petitions even by third parties, if a prima facie case is made. The Court reiterated that the executing court acts as a trial court, and its determination binds the parties and bars separate suits, making it essential to afford due process through framing of issues and leading of evidence.

By holding that summary rejection of plausible claims is a jurisdictional error, the judgment strengthens protections for non-parties affected by execution, especially in joint family property disputes under Hindu law, where factual nuances and historical family arrangements must be judicially explored.

Date of Decision: 17 November 2025