The Supreme Court has set aside orders rejecting a charitable Wakf’s objections to the execution of a decree for possession of property in Hyderabad and directed the executing court to examine the dispute afresh.
The case raised the question of whether an objection could be rejected for citing the wrong provision of the Code of Civil Procedure, 1908, without conducting the inquiry required into competing claims over the property.
A Bench of Justice S.V.N. Bhatti and Justice N.V. Anjaria did not finally determine ownership of the disputed property. Its decision restores the dispute for fresh adjudication before the VII Senior Civil Judge, City Civil Court at Hyderabad.
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The dispute arose from a suit seeking specific performance of an agreement of sale dated February 23, 2001. The plaintiff instituted the suit in December 2012, seeking execution of a sale deed and delivery of possession.
The defendant remained ex parte, and the civil court decreed the suit on March 18, 2015. The decree directed execution and registration of a sale deed in favour of the plaintiff and recognised his entitlement to possession of the scheduled property.
The decree described the property as shops at Rikabgunj, Pathergatti, Hyderabad, bearing old Municipal No. 634 and new Municipal Nos. 21-1-1098/9/10/11, measuring 373 square yards. Other documents referred to in the proceedings described an extent of 375 square yards.
In January 2016, the decree holder initiated execution proceedings seeking physical possession. Alladin Charities and Zakat Wakf, which was in possession of the property claimed by it, entered the proceedings as a third-party objector and resisted delivery.
The Wakf asserted an independent claim to the property through a Farman Mubarak issued by the then Nizam of Hyderabad. According to its case, the land had been conveyed to the founder of the Alladin family trusts for establishing a Waqf for charitable purposes.
It also relied on a June 6, 1949 entry in the Muntakhab, or Book of Endowments, describing the property as the Mecca Madina Building at Pathergatti. A trust deed executed on September 23, 1976 covered approximately 3,151.51 square yards at Rikabgunj, Pattharghati.
The Wakf referred to earlier proceedings involving the State Waqf Board and rival claimants. These included a writ appeal allowed in its favour in October 2001, followed by dismissal of special leave petitions challenging that decision in February 2002.
It further relied on a November 2003 Gazette notification identifying Municipal Nos. 21-1-1098/1 to 8 and seven unnumbered shops as property belonging to, or under its administrative control. Earlier proceedings concerning Municipal Nos. 21-1-1098/9 to 11 were also cited in support of its objections.
The competing claims therefore required examination of whether the property covered by the decree was the same property claimed and possessed by the Wakf.
The executing court dismissed the Wakf’s claim petition on January 29, 2019.
It held that the Wakf had failed to establish ownership of the specific property described in the execution petition. Among other deficiencies, it noted that Municipal Nos. 21-1-1098/9 to 11 were not expressly mentioned in the Gazette notification and that the Farman, survey report and authorisation of the managing trustee had not been produced.
The court also held that the petition, filed under Order XXI Rule 58 CPC, was not maintainable because that provision concerns objections to attachment of property, whereas the execution proceedings sought delivery of possession.
The Telangana High Court upheld the dismissal. It similarly noted gaps in the documentary evidence and held that the application ought to have been made under Order XXI Rule 97 CPC. It also concluded that the claim failed on merits.
Before the Supreme Court, senior advocate C. Aryama Sundaram, appearing for the Wakf, argued that citing an incorrect provision was not a sufficient ground to reject a third party’s objection to execution.
He relied on Periyammal (Dead) Through Legal Representatives and Others v. V. Rajamani and Another, reported in (2025) 9 SCC 568, to contend that the executing court was required to conduct a detailed inquiry into the objections.
The judgment discussed the principles emerging from that precedent. Order XXI Rule 35 empowers an executing court to remove a person bound by the decree who refuses to vacate. Rules 97 to 101 address resistance or obstruction by any person, including a stranger to the decree claiming an independent right, title or interest.
The framework distinguishes between resistance before dispossession and a claim for restoration after dispossession. Rule 97 concerns obstruction before execution of a decree for possession, while Rule 99 addresses the position of a person claiming independent rights who has already been dispossessed.
An adjudication under Rule 97 must proceed in accordance with Rule 101, requiring a full inquiry into relevant questions of right, title or interest arising between the parties.
The Wakf argued that the crucial issue was the identity of the property as reflected in historical and current revenue or municipal records.
It questioned whether the property described in the older sale deed, the agreement of sale and the decree schedule had been properly correlated. It also contended that the lower courts had wrongly placed the burden on it without adequately examining the decree holder’s documents.
Senior advocate Basava Prabhu S. Patil, appearing for the decree holder, initially maintained that possession was being sought only of the property covered by the agreement and decree.
However, when the Court asked whether the schedules in the 1943 sale deed, agreement of sale and court-executed sale deed had been correlated through documentary evidence, counsel stated that the decree holder had proceeded on the understanding that the third-party objector had to discharge the burden.
He suggested remanding the matter so that both sides could submit additional pleas and evidence in support of their respective claims.
The Supreme Court concluded that some findings recorded by the lower courts did not conform to well-established principles of law.
“Some of the findings recorded in the impugned Judgments do not conform to well-established principles of law,” the Bench observed.
It accordingly set aside the challenged judgments and remanded the matter to the executing court. Both parties must be allowed to raise further or fresh pleas, and the court must conduct a fresh inquiry in light of the precedent discussed in the judgment.
The appeal was allowed without any order as to costs.
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