Order XXI Rule 35 CPC - Decree for Immovable Property
Order 21 Rule 35 of the Code of Civil Procedure, 1908 (CPC) governs the delivery of possession of immovable property when a civil court decree directs that possession be handed over. It distinguishes delivery of exclusive possession from joint possession and authorises specified measures to give effect to a decree.
Text and Meaning of Order XXI Rule 35 CPC
Rule 35(1) - Delivery of possession
Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.
Rule 35(2) - Joint possession
Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree.
Rule 35(3) - Access to buildings or enclosures
Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession.
Important Legal Terms
Decree: Under Section 2(2) CPC, the formal expression of an adjudication conclusively determining the rights of parties regarding matters in controversy, subject to the statutory definition.
Decree-holder: Under Section 2(3) CPC, a person in whose favour a decree has been passed or an order capable of execution has been made.
Judgment-debtor: Under Section 2(10) CPC, a person against whom a decree has been passed or an order capable of execution has been made.
Immovable property: In this context, land, buildings and interests in property that cannot ordinarily be moved; the nature and extent of the property must be identified by the decree.
How a Decree for Possession Is Executed
- Execution application: The decree-holder applies to the competent executing court, generally under Order XXI Rules 10 and 11 CPC, identifying the decree and relief sought.
- Scrutiny and process: The court considers the application, any applicable notice requirements, and the terms of the decree before directing delivery.
- Warrant for possession: Court officers act under the court's authority to deliver possession of the property specified in the decree.
- Removal where authorised: Under Rule 35(1), a person bound by the decree who refuses to vacate may be removed if necessary.
- Return to court: The executing officer reports compliance or any obstruction, for further orders as appropriate.
Actual Possession and Joint Possession
Exclusive possession under Rule 35(1) ordinarily involves putting the decree-holder or an authorised recipient in possession of the property, including removal of persons bound by the decree when legally necessary.
Joint possession under Rule 35(2) is delivered through affixing the warrant and public proclamation of the decree. This is different from physically removing every occupant or co-owner.
Tenants, Third Parties and Obstruction
Order XXI Rule 36 CPC addresses delivery where property is occupied by a tenant or another person entitled to occupy who is not bound by the decree. Delivery may then be symbolic rather than by dispossession.
When resistance or obstruction occurs, Order XXI Rules 97 to 103 CPC provide procedures for adjudicating relevant claims, including questions of right, title or interest arising between the parties to those proceedings. Rule 35 does not, by itself, authorise indiscriminate eviction of independent third-party occupants.
Powers and Limits of the Executing Court
Section 51 CPC sets out recognised modes of execution, including delivery of property specifically decreed. Section 47 CPC generally requires questions relating to execution, discharge or satisfaction of a decree arising between the parties or their representatives to be determined by the executing court. The court ordinarily enforces the decree as passed rather than altering its substantive terms.
Under Rule 35(3), court officers may open locks or doors when the stated conditions are satisfied, but reasonable warning and the prescribed opportunity for a woman observing the specified custom to withdraw must first be provided.
Frequently Asked Questions
Can the executing court remove an occupant under Order 21 Rule 35?
Yes, where the occupant is bound by the decree and refuses to vacate, removal may be ordered when necessary to deliver possession. Independent third-party rights must be considered under the applicable provisions.
What is the difference between Rules 35 and 36?
Rule 35 concerns delivery of possession under the decree, including joint possession. Rule 36 deals with property occupied by a tenant or other person entitled to occupy who is not bound by the decree.
Can a court break open a locked door to deliver possession?
Rule 35(3) permits specified action through court officers, subject to its conditions and safeguards, where a person bound by the decree does not provide access.
How is joint possession delivered?
By affixing a copy of the warrant at a conspicuous place on the property and proclaiming the substance of the decree by drumbeat or another customary method.
Legislation and Further Reading
Consult the official India Code repository for the Code of Civil Procedure, 1908 and the Legislative Department, Government of India. Local amendments, court rules and subsequent judicial decisions may affect the procedure in a particular jurisdiction.
Disclaimer: This article provides general legal information, not advice on a specific decree or execution proceeding.