JUDGMENT
Dalava Subrahmanyam, J.
1. The appellant 5th respondent filed the appeal against the orders passed in EP No. 1 of 2001 dated 9-4-2002 in directing issue of warrant of delivery of possession of E.P. schedule property to the execution petitioner by evicting the judgment-debtors from the E.P schedule property and also for a direction to grant police aid for execution of the warrant.
2. The brief facts leading to the filing of the appeal are as follows:
3. The 1st respondent Smt. G.V. Kalavathi filed EP No. 1 of 2001 in CS No. 14 of 1958 under Section 146 and Order XXI, Rules 11 and 16 CPC praying to order delivery of possession of E.P. schedule properties to her by evicting the judgment-debtors from E.P schedule property and for police aid for execution of the warrant.
4. CS No. 14 of 1958 was filed by one Dildarunnisa Begum and another for partition of mathruka properties including 14 mulgies as detailed in E.P schedule. The 1st respondent-petitioner purchased the E.P schedule premises under registered sale deed dated 12-6-1967 from D51 and D52. During the pendency of the suit, there was a compromise between some parties in respect of certain properties and item 30 of schedule IV, which is the subject-matter of E.P, fell to the share of D51 and D52 in the said compromise. They sold the said property to the 1st respondent-petitioner. The other respondents, who were the defendants in the suit, challenged the decree in CS No.14 of 1958 and the matter went up to the Supreme Court and the Supreme Court dismissed the said appeal on 7-8-1991 in Civil Suit Appeal No.2021 of 1972. The 1st respondent herein filed E.P. for recovery of the E.P. schedule property. The respondents 5, 7, 8 and 9 opposed the execution petition. It is their contention that they have purchased the mulgies in question under registered sale deeds dated 2-2-1962. The respondents contested the execution on the ground that they are in possession of the property and they have to be evicted only by due process of law. It is their further contention that the decree was only a declaratory and it cannot be executed, as there is no specific direction in the decree to take possession.
5. After hearing the parties, the E.P was ordered as prayed for to the extent of 14 mulgies and the execution petitioner was also permitted to approach this Court by a separate application seeking police assistance.
6. Aggrieved against the orders of the learned single Judge, the appellant-5th respondent filed the appeal contending that the order passed by the learned single Judge is not correct and the learned single Judge erred in ordering delivery of the E.P. schedule property. It is also contended that the learned Judge failed to appreciate that the decree in CS No. 14 of 1958 relates to the partition of mathruka properties only and the properties relating to 14 mulgies in execution petition belong to the petitioner. It is further contended that the learned judge failed to appreciate that the disputed item 30 under the compromise decree was not part of mathruka property of the 1st defendant and as such there was no decree for partition and there was no direction for possession of the said property. The decree was only a declaratory in title. Declaratory decree cannot be executed, but he is entitled to other civil remedies. The appellant has also filed OS No. 1620 of 1996 on the file of VII Additional Judge, City Civil Court, Hyderabad for declaration of his title to the four mulgies by adverse possession. For the abovesaid reasons, the order of the learned single Judge dated 9-4-2002 in EP No.1 of 2001 in CS No.14 of 1958 may be set aside.
7. Now the point for consideration is whether the decree in C.S.No. 14 of 1958 insofar as E.P schedule in E.P No. 1 of 2001 is not executable and if so whether the order of the learned single Judge is liable to be set aside?
8. Smt. G.V. Kalavathi alleging that she acquired absolute ownership over the schedule property, filed EP No. 1 of 2001 in CS No. 14 of 1958 praying to order delivery of possession of E.P. schedule property to her by evicting the judgment-debtors from E.P schedule property and also for police aid for execution of the warrant. CS No. 14 of 1958 on the file of the High Court was filed for partition of mathruka properties and the said suit was compromised by some parties and under the compromise D51 and D52 were declared as the owners of the disputed E.P. schedule property and the petitioner having purchased the suit property from them filed E.P for delivery of possession. After hearing, the learned single Judge ordered delivery of possession.
9. The learned advocate appearing for the appellant Sri Vilas V. Afzulpurkar contended that there is no executable decree as the decree in CS No.14 of 1958 is not an executable decree. The remedy of the 1st respondent/petitioner is only to file a suit for recovery of possession. In fact, the appellant filed OS No.I620 of 1996 on the file of VII Additional Judge, City Civil Court, Hyderabad for declaration that the appellant perfected his title by adverse possession and he is the absolute owner and for perpetual injunction against the 1st respondent and others and the said suit is pending. The disputed property is not the mathruka property which is the subject-matter of partition in CS No.14 of 1958. As per the compromise decree in CS No.14 of 1958, the title of D51 and D52 was only declared and there is no direction to take possession of the properties. In the absence of specific direction, the execution is not maintainable and hence the order of the learned single Judge may be set aside, The learned advocate appearing for 1st respondent Md. Mahmood Ali, contended that the decree in Civil Suit 14 of 1958 is clear conferring right title and ownership to D51 and D52 regarding the disputed property. D51 and D52 sold the property in favour of the petitioner in EP No. 1 of 2001 and hence she is entitled to execute the decree and for delivery of possession. Since the litigation was pending for over a decade, there is no need to file a fresh suit and Smt. G. V. Kalavathi is entitled to seek delivery of possession by executing the decree. The learned Advocate relied on a decision in Shreenath v Rajesh, , wherein it was held at page 552 as follows:
“In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the executing Court as well as by the decree-holder the remedy available to the decree-holder against such an obstructionist is only under Order 21, Rule 97 Sub-rule (1) and he cannot bypass such obstruction and insist on reissuance of warrant for possession under Order 21, Rule 35 with the help of police force, as that course would amount to bypassing and circumventing the procedure laid down under Order 21 Rule 97….”
The learned Advocate also relied on a decision in Gauri Shankar v. Smt. Gauga, RLW 1969 Page 22, wherein it was held that in a partition suit, the parties are entitled for possession of the portion allotted to them to the execution of the others. The learned Advocate contended that the learned single Judge rightly ordered execution as per the decree in CS No. 14 of 1958 and the said order is legal and valid.
10. The 1st respondent, who is the petitioner, Smt. G V. Kalavathi filed EP No. 1 of 2001 against the respondents praying to order delivery of possession of E.P. schedule property by evicting the judgment-debtors from E.P schedule property and also for police aid while executing the warrant of delivery. The learned single Judge passed orders directing execution of the decree for possession, which is now impugned. The execution is filed under Order XXI, Rules 11 and 16 CPC. Under Order XXI, Rule 16, the purchaser of a property is entitled to execute the decree. Smt G.V. Kalavathi filed execution petition alleging that she purchased the property from D51 and D52. As a purchaser of the property she acquired title and right in the property. The question is whether the decree in CS No. 14 of 1958 is executable or not insofar as the E.P. schedule properties are concerned. As seen from the records, some parties entered into compromise and a preliminary decree was passed on 28-6-1963. The recitals in the terms of compromise read as follows;
“That the lands known as Bada Ramdhan Chowdary and Najib Bagh mentioned in item No.30 of the IV schedule attached to the plaint shall belong to defendant Nos. 51 (Wirbahuddin Khan) and 52 (Ghousuddin Khan) in which they have made a heavy investment and they shall be the exclusive owners of the same, as admitted by the parties to the compromise”.
11. It is significant to note that Thakur Saraswathi Prasad Singh filed OS No. 1620 of 1996 on the file of the VII Additional Judge contending that he purchased the disputed property under registered sale deed dated 2-2-1962 and since then he has been openly and continuously in possession and enjoyment of the disputed properties as absolute owner to the knowledge of 1st defendant and G. Narayana Swamy. Hence even by the date of compromise, the disputed property was alienated in favour of Thakur Saraswathi Prasad Singh. Whether the said sale deed is true, valid and binding is also to be decided. In the compromise decree, there is no direction that Thakur Saraswathi Prasad Singh to deliver the disputed four mulgies since he had already purchased. He is not a party to the compromise. Further, the terms of compromise would disclose that D51 and D52 shall be exclusive owners and there is no direction that they are entitled to the delivery of possession. Since there is no direction in the decree for delivery of possession, the purchaser from D51 and D52 cannot seek for delivery of possession by way of execution. The remedy of G. V. Kalavathy is to file a suit for declaration of title and for delivery of possession, if so advised. Unless, there is a decree for delivery of possession, the execution petition is not maintainable. The argument of the advocate for the 1st respondent that these matters can be decided in the execution proceedings and all the objections can be decided under Order XXI, Rules 97 to 101 CPC only when there is decree for delivery of possession. The decisions relied on by the advocate for the 1st respondent have no application to the facts of this case since in those cases there is a specific direction in the decree itself for delivery of possession. When there is such a direction, the Court executing the decree is bound to hear the objections and pass an appropriate order. But, in the instant case, the decree is silent with regard to the delivery of possession. The compromise decree is only declaratory of title so far as D51 and D52 are concerned from whom the 1st respondent purchased the property.
12. The 1st respondent-petitioner in EP No. 1 of 2001 Smt. G.V. Kalavathy said to have purchased the property from D51 and D52 and having purchased the property, she filed execution petition under Order XXI, Rules 11 and 16 CPC. Assuming that her sale deed is valid, she is in the position of the transferee of a decree and she is entitled to execute the decree, in such a case the Court should hear the objections of the respondents and after hearing the objections, the Court may order for the execution of the decree. As seen from the records, the appellant said to have purchased the property even prior to the date of preliminary decree. Whether the appellant would derive valid title or the 1st respondent would derive title to the disputed property has to be decided before the execution of decree or delivery of possession is ordered. The learned single Judge has not gone into that question and decided the said objections. When there are rival claims, the Court has to decide their claims after recording the evidence. Under Order XXI Rule 101 CPC, all questions relating to right title or interest in the property arising between the parties to a proceeding have to be decided by the Court. The learned single Judge has not gone into that aspect and decided the right and title to the disputed property. Without deciding the right and title to the disputed property, the delivery of possession ought not to have been ordered. For the above said reasons, we are of the opinion that the decree in question is not executable insofar as the E.P schedule property is concerned and the 1 st respondent Smt. G.V. Kalavathy is not entitled for the execution of decree and for delivery of possession of E.P. schedule property and the learned single Judge committed error in passing order for delivery of the properties insofar as E.P. schedule mulgies are concerned and therefore the said order is liable to be set aside.
13. In the result, the OSA is allowed with costs and the order passed in EP No. 1 of 2001 in CS No. 14 of 1958 dated 9-4-2002 is set aside.