Writ of execution for the recovery of possession

The recovery of possession of an immovable property is what every landlord seeks when a tenant fails to pay the rent legally owed or the mense profit ordered to be paid during the period of stay of execution of the eviction order. The initiation of eviction proceedings is the first step in obtaining the order of eviction and the second is the execution of the order, so that a writ of possession is issued in pursuance of the execution of the order against every person in possession to surrender the property to its owner. The owner who succeeded in issuing an order for the recovery of possession, may serve the order within the time specified therein and if there is no compliance, the owner is entitled to apply by an ex parte application for the issuance of a writ of possession for the execution of the eviction order. Once the eviction order is timely served and its contents are clear and the time to compliance has elapsed without compliance, the tenant or any other person in possession who is affected, will be deemed to have given the opportunity to seek a remedy. The Court will issue the writ of possession thereafter and it will be up to the Registrar or the bailiff responsible to execute it so that the owner will take possession of the property.???

Order 43A of the Civil Procedure Rules provides that where a judgment or order of a Court for the recovery or delivery of possession of any immovable property is sought to be enforced by a writ of possession, the writ may be issued by leave of the Court obtained on an ex parte application by the plaintiff supported by an affidavit. Such leave shall not be given unless it is shown that all persons in actual possession of the whole or any part of the property have received such notice of the proceedings as may be considered sufficient to enable them to apply to the Court for relieve or otherwise.

The possibility of the existence of unexpected events that precluded the tenant to comply with the order in the time specified therein, do not legitimize him to apply for an order of the Court to set aside the writ of possession or any other remedy. Such events cannot be considered that they fulfil the conditions set by the Regulation, and they do not legitimize the Court to order the setting aside of the writ of possession issued. The Rent Control Court in its judgement issued in application E25/2021, dated 16.2.2023, considered the issue with reference to Order 43A. It emphasized that the issuance of a writ of possession is applied by an ex parte application. It is a common law and not in personam remedy against the respondent, but in rem, by which power is given to the Registrar of the Court to take specific actions to give free possession of the immovable property to its owner. Even in the cases where the Registrar enforces the writ of possession against a specific person, he has the right to evict all the persons who derive rights from that person.

The Court added that the main purpose of this procedure is the return of the possession of the property to its rightful owner. Moreover, it gives relevant warnings to any third parties affected for any reason by the issuance of the order, who have the right to apply to the Court and request setting aside the writ of possession, under Order 48 rule 8(4). The reference in the said Order ‘‘relief or otherwise’’ does not amount to conferring any new rights on either the tenant or any other occupant of the disputed premises. The Court therefore emphasized that in order for the writ of possession to be set aside, the applicant must prove that the execution of the order would either be futile, or that, under the particular circumstances of the case, unjustifiably was issued in the first place.

The Court, referring to the English textbook Woodfall's Law on Landlord and Tenant, noted the aforementioned, that the possibility to set aside a writ of possession is limited and concerns the following cases: (a) when the order on which the writ was based is annulled, or (b) when the writ has been obtained by fraud, or finally (c) when there is an abuse of process or oppression in the execution. In this particular case, the Court ruled that the above conditions were not met and did not agree with the tenant that the issuance of the writ of possession in question leads to the finding that there was an abuse of the process or oppression of him. The Court concluded that the execution of a well-issued Court order does not amount to oppression against the one who must comply with it. On the contrary, it is the execution that completes in practice the judicial process. Consequently, the Court dismissed the application of the tenant for the aforesaid reasons, as well as, due to the fact that his application did not even contain the correct procedural provisions.