Ayyappan Pillai v. Raveendranathan — 1998 DIGILAW 616 (KER)

Judgment :- S. Krishnan Unni, J. These E.F. As. arise from the common order passed by the Principal Sub Judge, Thiruvananthapuram in E.A. Nos. 19,17,16 of 1987 and two other E.As. on 28.1.1998, filed by the decree holder in O.S. No. 31 of 1968 of that Court under 0.21 R.97 CPC for removal of obstruction in execution of the decree. The appellants are obstructors whose objections were overruled by the lower court. 2. I will give a very brief background which gave rise to these applications. O.S. No. 31 of 1968 was a suit for specific performance filed by the decree holder against two defendants, setting up an agreement for assignment of 2 acres of land in Sy. Nos. 512, 513 and 514 of Padikkattu Muri, Cheruvakkal Village. The suit was filed on 1.6.1968 and it was decreed on 26.2.1970. An appeal was filed before this court as A.S. No. 567 of 1970 against the said judgment and decree. The said appeal was heard on 5.7.1974 and the suit was remanded to the lower court for fresh disposal relating to the right of way. After the suit was remanded, an application was filed to amend the plaint as I. A. 5299(a) of 1974, and the suit was again decreed subject to the above amendment on 29.11.1974. Defendants again preferred an appeal (A.S. No. 47 of 1976) before this Court. When the appeal was taken for hearing, appellants' counsel reported no instructions and the appeal was dismissed on 23.10.1981. After dismissal of the appeal, E.P. 61 of 1982 was filed on 26.2.1982. The 2nd defendant who was a judgment-debtor died and respondents 2 to 7 were impleaded as legal representatives. The Court executed a sale deed in favour of the decree-holder and it was registered on 21.9.1985 as document No. 2576 of 1985 of Pattom Sub Registrar's Office. Pursuant to the sale deed, the decree-holder applied for delivery and on 6,11.1986 the court ordered the Amin to delivery the property. When the Amin went to the plot, there was obstruction with regard to portion of the property. The basis on which the obstructors claim title to the property was as assignee from one Mukundan Pillai, impleaded as 9th respondent. When the Amin went to the plot, there was obstruction with regard to portion of the property. The basis on which the obstructors claim title to the property was as assignee from one Mukundan Pillai, impleaded as 9th respondent. It would appear that Mukundan Pillai had obtained a purchase certificate as per order of the Land Tribunal on 24.4.1979 in S.M. 2 of 1979 in respect of 4 acre 9 cents in Sy. Nos. 509,512,513 and 514, on the basis of an alleged oral lease dated 10.8.1962in his favour under defendants 1 and 2. After obtaining purchase certificate he has sold portions of the property to various persons who have obstructed delivery of possession of the property. From the foregoing facts it is relevant to bear in mind that the suit was for specific performance of a contract, it was decreed and the document was executed by the court in the presence of respondents 2 to 7, the legal representatives of deceased 2nd defendant. 3. The lower court dealt with the five E. As. by the impugned common order. As I stated, appeals are filed only from E.A. Nos. 19,17 and 16 of 1987. There are no appeals preferred by the obstructors in E. A. 15 and 18 of 1987. In E. A. No. 19 of 1987, from which E.F.A. 11 of 1998 arises, the obstruction is with regard to 20 cents. The claimant is one Ayyappan Pillai. According to him, he got assignment of 1.25 acres of land from Mukundan Pillai (respondent No. 9) and has assigned a major portion of the land in favour of strangers barring 20 cents to which he claims right. In E. A.17 of 1987, from which E.F.A. 12 of 1998 arises, the claimant is one Sarojini Amma who contended that she obtained 1 acre from Mukundan Pillai, that she sold 40 cents of land to others and claimed to be in possession of the balance 60 cents the delivery of which she resisted. In E. A.16 of 1987 the claimant is one Sreekumaran Nair who claims to have purchased 45 cents from Mukundan Pillai and he offers resistance to the same. The claimants have produced the assignment deed taken by them from Mukundan Pillai as well as certified copy of the purchase certificate granted by the Land Tribunal to the said Mukundan Pillai. 4. The claimants have produced the assignment deed taken by them from Mukundan Pillai as well as certified copy of the purchase certificate granted by the Land Tribunal to the said Mukundan Pillai. 4. The decree holder contended that the lease set up by Mukundan Pillai was fraudulent and the judgment-debtors in the suit did not advance a case that the property covered by agreement of sale was in the possession of Mukundan Pillai under a lease either in the reply notice, written statement or during the pendency of appeal and that the entire proceedings of the land Tribunal is a result of collusion and fraud between judgment-debtors and the said Mukundan Pillai and therefore the obstructors who are claiming under Mukundan Pillai would not derive any title or possession thereto. It was also contended by the decree-holder that the purchase certificate issued by the Land Tribunal was during the pendency of O.S.31 of 1968 and therefore, it is hit by the principle of lis pendens. The further contention taken up was that the judgment-debtors who are the landlords in the S. M. proceedings did not disclose to the Land Tribunal about the pendency of a litigation between them and the decree-holder and therefore, the order of the Land Tribunal is vitiated by fraud. It is also submitted by them that during the pendency of the suit and the appeals there from, the judgment-debtors have not disclosed about a lease or about the proceedings before the Land Tribunal. 5. Thus, the obstruction releases to 60 cents claimed by Sarojini Amma, 20 cents claimed by Ayyappan Pillai and 45 cents claimed by Sreekumaran Nair. When the matter was heard, the decree holder filed two E. As. One was E. A. 433 of 1992 calling for certain documents filed before the trial court during the pendency of the suit; they are: 1) Reply notice sent by 1st defendant's advocate on 28.5.1968 2) Appeal Memo in A.S. No. 47 of 1976 3) JudgmentinA.S.47of 1976 4) Certified copy of the application filed by Mukundan Pillai before the Land Tribunal 5) Objections to the petition filed by defendants 1 and 2 who were respondents in that proceedings. 6) Order of the Land Tribunal dated24.4.1979. As per E.A. No. 434 of 1992, the decree holder prayed for incorporating the documents marked during the trial from the court-records. 6) Order of the Land Tribunal dated24.4.1979. As per E.A. No. 434 of 1992, the decree holder prayed for incorporating the documents marked during the trial from the court-records. They are: 1) Issues framed in the suit 2) Reply notice 3) Deposition of DW4(1st defendant) 4) Judgment in the suit dated 26.2.1970 Along with the objections the obstructors filed a copy of the purchase certificate and the assignment deeds obtained by them from Mukundan Pillai and certain revenue receipts. Curiously, no documents were marked and no witness were examined even though the parties were at issue regarding respective title claimed by them and were alleging fraud mutually. The decree holder would allege strongly that the entire Land Tribunal proceedings was collusive affair between judgment debtors in the suit and Mukundan Pillai and the proceeding is vitiated by fraud. On the other hand, the obstructors would allege that the suit was collusive affair between judgment-debtors on the one hand and the decree holder on the other, in order to defeat the rights of the tenant from them whom they have taken assignments. The above contentions were dealt with in the E. As. filed before the execution court. By the impugned order, the learned Sub Judge held that the order of the Land Tribunal is vitiated by fraud for the reason that the pendency of O.S.31 of 1968 was not disclosed during those proceedings, that the judgment debtors in the suit did not have a case of lease in favour of Mukundan Pillai, either in the reply notice, written statement or during the appellate stage and that it is a new case developed to resist execution of the decree. The lower court also held that the purchase certificate issued to Mukundan Pillai and the Land Tribunal proceedings are vitiated on the principle of lis pendens having come into existence while the suit for specific performance and the subsequent appeals against the decree were pending and therefore, the purchase certificate is bad in law. It is further pointed out by the lower court that while the defendants in the suit contended that the consideration of Rs. 60,000/- is not enough, they were satisfied before the Land Tribunal with the meagre compensation of Rs. 300/- and had even admitted tenancy in favour of Mukundan Pillai before the Land Tribunal. It is further pointed out by the lower court that while the defendants in the suit contended that the consideration of Rs. 60,000/- is not enough, they were satisfied before the Land Tribunal with the meagre compensation of Rs. 300/- and had even admitted tenancy in favour of Mukundan Pillai before the Land Tribunal. It is pointed out that A.S.47 of 1976 was disposed of or 23.10.1981 and the purchase certificate was issued on 27.6.1979 while the suit us pending. In view of the above reasoning, the execution court held that the obstruct have no locus standi to object to the execution of the decree and the applications of to decree holder. 6. The points arising for decision in these appeals are: i) maintainability of the E. As. in view of the failure to implead the legal representatives ii) whether the purchase certificate issued by the Land Tribunal in S.M.2 of 1979 is hit by the principle of lis pendens; iii) whether the obstructors have title to the possession of the property claimed; iv) whether the purchase certificate issued to Mukundan Pillai is vitiated by fraud and collusion. 7. One of the preliminary objections raised in the appeals is that the 2nd respondent died on 30.5.1996 and his legal representatives were not impleaded and that no permission was obtained under 0.22 R.4(1) CPC by the decree holder not to implead the legal representatives. Since the 2nd respondent's legal representatives are not impleaded, it was contended that the E.A s. would abate. It would appear that this specific contention was not taken up in the court below. Since the point is purely a question of law and raises challenge to the maintainability of the applications, I will consider their aspect first. 8. 0.22 R.4(1) CPC reads: "Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit." The above provision provides the procedure where one of two Or more defendants dies and the right to sue survives. On an application made in this behalf the court can cause the legal representative of the deceased defendant to be made a party and may proceed with the suit. Sub-r.(3) provides that where within the time limited by law no application is made under sub-r.(1), the suit shall abate as against the deceased defendant. Sub-r.(4) authorises the court to exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing. In such cases where the defendant remains ex parte or does not appear before the court and contest and he dies, the court can proceed without impleading the legal representatives. In such cases the rule envisages that the court may exempt the plaintiff from the necessity of impleading the legal representatives. The objection to the maintainability of the applications is that no such permission was taken from the court by the decree holder not to implead the legal representative of 2nd respondent before the expiry of 90 days and therefore, the applications will abate by operation of 0.22 R.4(3). In answer to this, the learned counsel for the decree holder contends that R.4 will not apply to execution proceedings as envisaged under R.12 which reads: "Nothing in Rr. 3,4 and 8 shall apply to proceedings in execution of a decree or order." Learned Senior Counsel Sri. P. Sukumaran Nair appearing for the appellant in E.F.A. 11 of 19 98 brought to my notice certain decisions to argue that the applications will abate unless such permission under 0.22 R.4(4) is obtained before abatement. Lakshmi Charon v. Satyabadi (AIR 1964 Orissa 39) (para. 7), G. Peeriah v. Narayana Rao (AIR 1968 AP 116) (para4 and 5), Annapurna v. Harsundari (AIR 1975 Calcutta 12) (para 13), and Pradlp Narain Singh v. Brij Nandan Prasad (AIR 1988 Patna 147) (Para. 6) are relied on for this purpose. All the above decisions were rendered in cases where did not arise from execution proceedings. There is no dispute for the proposition that where a party applies to the court for exemption under 0.22R. 4(4) not to implead the legal representatives, he must move an application before the period of abatement. 6) are relied on for this purpose. All the above decisions were rendered in cases where did not arise from execution proceedings. There is no dispute for the proposition that where a party applies to the court for exemption under 0.22R. 4(4) not to implead the legal representatives, he must move an application before the period of abatement. That aspect is not very relevant in this case because the argument by counsel for the decree holder is that since this is a proceeding in execution under R.12, he is not bound to implead the legal representatives of deceased 2nd respondent. 9.0.21 R.97 under which these applications are filed for removal of obstruction provides for filing of such applications by the decree-holder where there is resistance. Under R.98, the court after determining the questions mentioned in R.101 shall make an order allowing the application and directing that the decree holder be put in possession or may dismiss the application. 0.21 R.101 states what should be the question to be determined by the execution court in such cases, which reads: "All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under R.97 or R.99 or their representatives, and relevant to the adjudication of the application, shall be determined by the court dealing with the application and not by a separate suit and for this purpose, the court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions." The above rule clearly states that when an application under R.97 or R.99 is filed, all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding shall be determined by the execution Court and not by a separate suit for that purpose. 0.21 R.103 provides that "where any application has been adjudicated upon under R.98 or R.100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree". In this connection, it is worthwhile to recall that before the Code of Civil Procedure was amended, when such an application was disposed of, the aggrieved party had to resort to a suit to establish his title. In this connection, it is worthwhile to recall that before the Code of Civil Procedure was amended, when such an application was disposed of, the aggrieved party had to resort to a suit to establish his title. Under the amended code, R.101 extracted above gives jurisdiction to the court dealing with the application to determine question relating to right, title or interest in the property of both parties. Therefore, the enquiry contemplated under R.101 is extensive and is a substitute for a suit. This background must give guidance as to the nature of enquiry to be conducted. I will now proceed to consider the applicability of 0.22 R.4 to execution proceedings. 10. Learned counsel for the decree-holder would contend that under 0.22 R.12, the provisions of R.4 will not apply to execution proceedings. Learned author Mulla in his commentaries on the Code of Civil Procedure, Vol. Ill, Fourteenth Edition, page 1797 while commenting about the scope of the newly introduced R.12, observes: The present rule provides that nothing in Rr. 3, 4 and 8 shall apply to proceedings in execution of a decree. It sets at rest the conflict on the question whether the provisions relating to the abatement of suits and appeals apply to proceedings in execution. The Madras High Court has held that this rule does not apply to the procedure for bringing on record the legal representatives of a deceased party in an execution proceedings, but merely enacts that the penalty of abatement shall not attach to execution proceedings. R.12 engrafts an exemption which provides that where a party to an execution proceeding dies during its pendency provisions as to abatement do not apply. The rule is, therefore, for the benefit of the decree-holder, for his heirs need for take steps for substitution under R.3 but may apply immediately or at any time while the proceeding is pending to carry on the proceeding or they may file a fresh execution application". 11. In Trilogchand Bafna v. Chelliappan (99 LW 438) the Madras High Court considered the scope of O. 22 R.12 CPC. That was a case where an order of eviction was obtained under the Rent Control Act against the tenant. The tenant carried the matter to the Supreme Court by a Special Leave Petition which ended in its dismissal. 11. In Trilogchand Bafna v. Chelliappan (99 LW 438) the Madras High Court considered the scope of O. 22 R.12 CPC. That was a case where an order of eviction was obtained under the Rent Control Act against the tenant. The tenant carried the matter to the Supreme Court by a Special Leave Petition which ended in its dismissal. At that time the landlady had passed away but in the Special Leave Petition the legal representative was shown as the respondent. When the same legal representative tried to get himself impleaded in the E.P., objection was taken on the ground that as the petition was not filed within 3 3 days from the date of death of the landlady, it is liable to be dismissed as abated. The Rent Control Court overruled the objection and allowed the petition. An appeal preferred was also dismissed and revision was filed. Dealing with the aspect the Madras High Court observed as follows: T.22, R.12 of the CPC, provides that nothing in Rr. 3,4 and 8 shall apply to proceedings in execution of a decree or order. After a valid decree is passed, it can been forced, till it is barred by time, as provided in law. As long as a decree can be enforced, it is obvious that an application to bring on record the legal representative can be presented within that period." 12. In Venkata Subbayya v. S. Veerayya (AIR 1969 AP 92) it was observed in para 4 as follows: "We do not think there is any force in the contention of the learned advocate for the appellant that having regard to the facts in this cases where it is not a question of abatement due to death, R.12 of 0.22 h as no application. The basis of the Supreme Court decisions for abatement of decrees is that there will be conflict of decrees, but that principle will not apply to execution proceedings because as held in Venkatachalam v. Ramaswamy, AIR 1932 Mad 73 by a Full Bench of the Madras High Court, even prior to 0. 22, R.12 it was a fairly well established doctrine under the old Code that the provisions of the Chapter relating to substitution upon the death, marriage or insolvency of parties, do not apply to proceedings in execution between the decree-holder and the judgment-debtor. It will be observed that the principles underlying 0. 22, R.12 it was a fairly well established doctrine under the old Code that the provisions of the Chapter relating to substitution upon the death, marriage or insolvency of parties, do not apply to proceedings in execution between the decree-holder and the judgment-debtor. It will be observed that the principles underlying 0. 22, R.12 are applicable not only in case of death of parties, but also in cases of insolvency, marriage etc., as such, the principle of abatement of decree does not apply to execution proceedings. Apart from the question that this point was not urged before our learned brother and therefore, cannot be allowed to be urged here, the decisions of the Supreme Court cited by the learned Advocate are confined to cases envisaged by O.22, Rr. 3, 4 and 8 and are not authorities for the proposition that the principles adumbrated by their Lordships are applicable to execution proceedings". 13. The Rajasthan High Court in Bhagirath Mai v. Bhagwan Dutt (AIR 1996 Rajasthan 27) held that decree against a dead person is not a nullity when deceased defendant had not filed written statement and had not made legal appearance during pendency of trial and in fact the trial has proceeded against him ex parte. The appeal against such decree cannot also be dismissed for not bringing legal representatives of deceased defendant on record. The B-diary in the present E.P. shows that though respondents 2 to 7 were impleaded as legal representatives of deceased 2nd defendant, they never appeared before court and the matter proceeded ex parte. In such a situation, application cannot fail just because his legal representatives are not impleaded. 14. This Court in Jose v. Augusthy (1998 (2) KLT SN 14 Case No. 16) observed that in execution proceedings, legal representatives are not called upon to seek substitution upon the death of the decree-holder. In Kanhaiyalal v. Rameshwar (AIR 1983 SC 503) the Supreme Court held that the death of one of the pro forma respondent and failure to bring on record his legal representatives in time does not result in abatement of appeal. 15. In V. Uthirapathi v. Ashrab Ali (AIR 1998 SC 1168), the Supreme Court observed thus: "26. In Kanhaiyalal v. Rameshwar (AIR 1983 SC 503) the Supreme Court held that the death of one of the pro forma respondent and failure to bring on record his legal representatives in time does not result in abatement of appeal. 15. In V. Uthirapathi v. Ashrab Ali (AIR 1998 SC 1168), the Supreme Court observed thus: "26. Here we have clarified further that if the execution petition was initially filed in time, (that is within the time limited for filing execution petition) it remains to be pending even if the legal representatives are not brought on record within 30 days. If the decree holder dies, the petition cannot be dismissed even for default, behind the lack of his legal representatives. Again if the judgment debtor died and the decree holder does not bring the legal representative on record, the court could fix reasonable time and if the legal representatives of the judgment debtor are not brought on record within the time granted by court, the execution petition could be dismissed for default". That was a case in which the eviction order against the tenant issued under the Rent Control Act was sought to be enforced. It is therefore abundantly clear that the strict rule that the legal representatives of a deceased party must be impleaded within the time prescribed by law failing which the proceedings would stand abated does not apply to execution proceedings. 16. Learned Senior counsel Sri. Sukumaran Nair appearing for the appellant in E.F. A.11 of 1998 submitted that the proceedings between obstructor and decree-holder partakes the nature of a suit and therefore, the provisions of 0.22 R.4 will apply to proceedings under 0.21 R.97 because the court has to import all the outfits of an original suit to such proceedings. I am unable to agree with this submission because 0.21 R.103 lays down that where any application has been adjudicated upon under R.98 or R.100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree. The Rule only imports a presumption that orders passed under R.98 or R.100 shall be deemed to be a decree for the purpose of appeal. This does not make the proceedings under 0.21 R.97 as one not falling within the execution proceedings. The Rule only imports a presumption that orders passed under R.98 or R.100 shall be deemed to be a decree for the purpose of appeal. This does not make the proceedings under 0.21 R.97 as one not falling within the execution proceedings. Therefore, the submission that 0.22 R.4 will not apply to proceedings under 0.21 R.97 cannot be sustained. I have already observed that this argument was not raised in the court below and was raised for the first time in these appeals. However, I find that there is no substance in the argument and the E. As. are maintainable. 17. The next question to be considered is whether the lower court has made a proper enquiry into the questions that arise in the applications under 0.21 R.101. As I mentioned earlier, R.101 lays down that all questions relating to right, title or interest arising between both parties to a proceedings shall be decided in an application between obstructor and the decree-holder. As I had observed earlier, these proceedings are substitute for a suit for which there was a provision in the unamended Code. The execution court has to remind itself that though the decision is rendered in execution proceedings, really it is adjudication of a dispute between a person who is not a party to the original suit or execution proceedings and the decree-holder or his representatives. The adjudication of such dispute may open up entirely new panorama that was not traversed in the original proceedings. It may be that the obstructor is claiming independently on his own right and not under the judgment-debtor. But there can be cases where obstructor claims under the judgment-debtor himself but setting up an anterior title which is valid. That is the case of the appellants-obstructors in these appeals. They claim that Mukundan Pillai had obtained an oral lease under the judgment-debtors in 1962. There was a proceeding before the Land Tribunal which ended in Mukundan Pillai's favour with issuance of purchase certificate. The obstructors are assignees from Mukundan Pillai, holder of purchase certificate. Therefore, apparently if that oral lease is valid, the obstructors will derive title to the property. In answer to the above claim the decree holder contended that the entire proceedings before the Land Tribunal was the result of collusion and fraud. He relied on certain circumstances in support of his contention, viz. Therefore, apparently if that oral lease is valid, the obstructors will derive title to the property. In answer to the above claim the decree holder contended that the entire proceedings before the Land Tribunal was the result of collusion and fraud. He relied on certain circumstances in support of his contention, viz. that such a case was not put forward in the reply notice, in the written statement or till the appeal A.S.47 of 1976 was disposed of. While this may be the line of argument of the decree holder, the court should not forget to examine the case put forward by the obstructors that the decree- holder and the judgment-debtors had colluded to defeat the tenant's rights. The lower court has overruled the case of defendants only on the following grounds: 1) Such a case was not pleaded in the suit; 2) The Land Tribunal was not informed about the pendency of O.S.31 of 1968; 3) On the ground of lis pendens; 4) The proceedings of the Land Tribunal and the purchase certificate are vitiated by collusion and fraud. 18. The execution court has not marked any documentary evidence in these proceedings. I have already drawn attention that two E. As. (E.As.433 and 434 of 1992 were filed by the decree-holder to send for some documents from the original side and the obstructors had filed certain documents along with the objection. Though the execution court freely referred to these documents in its discussion they were not marked as exhibits. Even the purchase certificate issued by the Land Tribunal produced by the obstructors was not marked. The records in S.M. 2 of 1979 from the concerned Land Tribunal were not sent for. Nobody was examined to prove the nature of the proceedings before the Land Tribunal. No evidence was adduced regarding the oral lease sought to be set up by the obstructors and they were not called upon to prove that oral lease. The execution court did not examine whether the Land Tribunal had examined the case of oral lease. Thus, without even marking any of the documents and without examining any witnesses, the execution court has come to a conclusion that the entire Land Tribunal proceedings are vitiated by collusion and fraud. 19. In this connection, it is useful to refer to two decisions which are relevant in this context. In George Antony & Ors. v. K.F.C. & Ors. Thus, without even marking any of the documents and without examining any witnesses, the execution court has come to a conclusion that the entire Land Tribunal proceedings are vitiated by collusion and fraud. 19. In this connection, it is useful to refer to two decisions which are relevant in this context. In George Antony & Ors. v. K.F.C. & Ors. (1989(1) KLJ 316) a Division Bench of this Court while considering the nature of proceedings under 0.21 R.58 CPC held that under the said rule the court is obliged to consider the title with all relevant matters as if it is a suit and considering the proceedings as a suit, normally treating the claimant as plaintiff and attaching decree holder as defendant. It was observed in para 4 as follows: "From the rule it is clear that the court is obliged to consider the title with all relevant matters as if it is a suit and considering the proceedings as a suit normally the claimant is to be treated as the plaintiff and the attaching decree-holder as the defendant. When the attaching decree-holder is the defendant it is well settled that the decree holder in that circumstances can take up all grounds to defend the claim including the ground available to him under S.58 of the Transfer of Property Act. It is also well settled that such a defence need not be in a representative capacity on behalf of all the creditors of the judgment debtor. This is the law on the subject." 20. The Bombay High Court in Musserwanji v. Shirinbai (AIR 1984 Bombay 357) commenting on the scope of 0.21 R.101 observed in para 10 as follows: "From the rule extracted above, it is easily seen that the language of the rule is peremptory and the powers given to the executing court under the said rule are plenary. The powers given to the executing court under R.101 are not qualified or hedged by any restrictions. On the other hand, it shows that the executing Court is required to adjudicate upon all questions mentioned in the said rule as if it had jurisdiction to deal with every question that may so arise. The powers given to the executing court under R.101 are not qualified or hedged by any restrictions. On the other hand, it shows that the executing Court is required to adjudicate upon all questions mentioned in the said rule as if it had jurisdiction to deal with every question that may so arise. By a legal fiction, an executing Court which may otherwise have no jurisdiction is invested with the jurisdiction to try all questions under the aforesaid rule." It is pointed out that under this rule the executing court is called upon to consider all questions arising between the parties including their title and there is no restriction imposed on such an enquiry. 21. Counsel for the respondent-decree holder relied on the decision in Silverline Forum Pvt. Ltd. v. Rajiv Trust (1998) 3 SCC 723 wherein the Supreme Court dealt with the scope of enquiry under 0.21 R.101. But counsel relied on the observation in para 14 that the executing court can decide the dispute between the resister or obstructor and the decree-holder. It is observed thus: "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 resister. Of course the court can direct the parties to adduce evidence for such determination if the court deems it necessary". Learned counsel relies on this decision to argue that failure to mark any documents or examine witnesses is not fatal and the executing court can modulate the form of enquiry as it has chosen to do in this case. While as a broad proposition no exception can be taken to the above rule, one should not forget that the apex Court itself has pointed out that the executing court may adopt any form of enquiry without going through rig morale of the trial process. But that does not mean that the court should give up the rules of natural justice and certain formalities that are usually observed by the courts in the adjudication of the disputes. As I pointed out, the scope of R.101 is very wide to embrace any kind of dispute between the parties and depending upon the scope of enquiry and the dispute involved the court may modulate its procedure. As I pointed out, the scope of R.101 is very wide to embrace any kind of dispute between the parties and depending upon the scope of enquiry and the dispute involved the court may modulate its procedure. But when questions of title are gone into and fradulent nature of a judicial proceeding is enquired into, one would expect the court to sent for the records of the proceedings concerned and examine whether they are vitiated by fraud. The parties should also be given opportunity to adduce evidence on the fraud alleged. Apart from this, the execution court has failed to examine the most important question, namely, whether the oral lease set up by Mukundan Pillai is true or a false one. The executing court ought not to have come to the conclusion that it must necessarily be false just because there was no mention of the above said oral lease in the reply notice or in the written statement in O. S.31 of 1968. This is a matter that falls for adjudication by the Court after parties are allowed to adduce evidence in support of their case. This shall be done by allowing both parties to adduce evidence after points in dispute are formulated. Documents will have to be marked and oral evidence adduced, if necessary. The records do not reveal that any such attempt was made in this direction. The executing court appears to have fallen into an error in freely referring to the records in the original side, forgetting the fact that the obstructors were not parties to that proceeding. Therefore, if it wanted to rely on these documents, it ought to have marked the same and thus brought to the notice of the obstructors that the court intends to rely on those documents against them. Similarly, it is patent from the records that the obstructors were never called upon to adduce evidence in support of their case and the entire proceedings before the Land Tribunal was held to be vitiated by fraud without any evidence on record. It may be that the circumstances relied on by the court below are true or not true. But before deciding that, the issues between the parties should be spotlighted and the evidence channelised. It is only thereafter the court can crystallise its conclusion on the issues. The failure to do so may result in miscarriage of justice. It may be that the circumstances relied on by the court below are true or not true. But before deciding that, the issues between the parties should be spotlighted and the evidence channelised. It is only thereafter the court can crystallise its conclusion on the issues. The failure to do so may result in miscarriage of justice. If it were a suit all the above procedures ought to have been followed by the execution court. The rules of natural justice were not allowed in this case before entering upon the finding on the question of fraud. Therefore, I am inclined to accept the submission made by counsel for appellants-obstructors that they were greatly prejudiced by the procedure adopted by the executing court: 1) in not marking documentary evidence; 2) in not allowing oral evidence to be adduced and 3) in freely referring to the evidence on the original side to which the obstructors were not parties. 22. It was argued that the order passed by the Land Tribunal is vitiated by the principle of Us pendens. This again is a matter to be decided after allowing the parties to adduce evidence. When the question of fraud and collusion is raised, a finding has to be entered on that aspect and the question of Ms pendens has to be considered only thereafter. If the Land Tribunal proceedings are found to be vitiated by fraud, it is unnecessary to take a decision on the question of lis pendens. Therefore, I am not considering the question whether the proceedings of the Land Tribunal are hit by the principle of lis pendens. 23. In the result, the E.F. As. are followed, the impugned common order is set aside and the matter is remanded to the execution court for a fresh disposal after allowing both parties to mark the documents which they want to rely on and after allowing them to adduce fresh evidence, uninfluenced by any observations contained in its order. The execution court will decide the question of title also. The parties will appear in the execution court on 18.1.1999.