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Neelakantan Narayanan Vs. Kesavan Padmanabhan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 217 of 1958
Judge
Reported inAIR1960Ker100
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 97 and 97(2);
AppellantNeelakantan Narayanan
RespondentKesavan Padmanabhan
Appellant Advocate T.S. Krishnamurthy Iyer, Adv.
Respondent Advocate M. Madhavan Nair,; Thomas Attipetty and; L.J. George
DispositionPetition allowed
Cases ReferredOuseph George v. Varkey Varkey and
Excerpt:
- - 2. i have no doubt that the order complained against in the revision petition is unsustainable......1. the facts necessary for the disposal of this civil revision petition are as follows:-- when the decree-holder applied for delivery of possession of the decree schedule properties, the present revision petitioner, who is a stranger to the suit, filed an obstruction petition and ultimately that obstruction petition was dismissed by the high court on the ground that, being a stranger to the suit, he had no right to approach the court except under order xxi, rule 100, code of civil procedure, that is to say on the ground, that he could file the obstruction petition only after dispossession by the amin. the high court's decision is reported in 1955 ker lt 413: ((s) air 1955 trav-co. 225), kesavan padmanabhan v. neelkantan narayanan. thereafter certain proceedings intervened, and ultimately.....
Judgment:
ORDER

Kumara Pillai, J.

1. The facts necessary for the disposal of this Civil Revision petition are as follows:-- When the decree-holder applied for delivery of possession of the decree schedule properties, the present revision petitioner, who is a stranger to the suit, filed an obstruction petition and ultimately that obstruction petition was dismissed by the High Court on the ground that, being a stranger to the suit, he had no right to approach the court except under Order XXI, Rule 100, Code of Civil Procedure, that is to say on the ground, that he could file the obstruction petition only after dispossession by the amin. The High Court's decision is reported in 1955 Ker LT 413: ((S) AIR 1955 Trav-Co. 225), Kesavan Padmanabhan v. Neelkantan Narayanan.

Thereafter certain proceedings intervened, and ultimately the decree holder himself made an application to the lower court in pursuance of which notice was issued to the revision petitioner to show cause why his obstruction should not be removed and the property delivered over to the decree holder. At that stage and in answer to the notice to him the revision petitioner again came forward with a petition saying that he was in possession of the property independently of the judgment debtors and the property should not therefore be delivered over to the plaintiff. Without inquiring into this petition and holding that it was bound by the decision in 1955 Ker LT 413: ((S) AIR 1355 Trav-Co. 225), the lower court dismissed the obstruction petition. In the order dismissing the obstruction petition it observed :

'In view of the ruling reported in 1952 Ker LT 660 : (AIR 1953 Trav-Co. 123). Ouseph George v. Varkey Varkey and 1955 Ker LT 413 : ((S) AIR 1955 Trav-Co. 225). I find that the present Petitioner-obstructor is not entitled to make such objections, though objections appear to have been filed in pursuance to a notice issued from court.The petitioner is competent to approach the court for reliefs only after actual dispossession under Order 21, Rule 100. In the result, the objections raised by the petitioner are overruled.'

It is to quash this order that this civil revision petition has been filed.

2. I have no doubt that the order complained against in the revision petition is unsustainable. Order XXI, Rule 97, Civil Procedure Code provides:

'1. Where the holder of a decree for the possession of immovable properly or the purchaser ofany such property sold in execution of a decreeis resisted or obstructed by any person in obtainingpossession of the property, he may make an application to the court complaining of such resistanceor obstruction.

2. The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.'

Whether the revision petitioner had the right to approach the court under Order XXI, Rule 100 or not, at the time of the application which was dismissed by the decision in 1955 Ker LT 413 : ((S) AIR 1955 Trav-Co. 225), there can be no doubt of the fact that the decree-holder when he apprehends obstruction from a stranger is entitled under Order XXI, Rule 97, to move the court to remove the obstruction and when such an application is made the court is bound under Clause 2 of Rule 97 to issue notice to the person from whom obstruction is expected, to hear his objections, investigate the same, and make a decision in the matter.

It was invoking this jurisdiction under Rule 97 that the decree holder made the application to the lower court to issue notice to the obstructor, i.e., the revision petitioner, and the notice issued to him was issued under the provisions of Clause 2 of Rule 97. The lower court was, therefore, bound to investigate his objections and record a decision thereon. This is not a case in which a stranger, who claims possession, has approached the court but a case in which the decree-holder came to the court complaining that the stranger's obstruction should be removed. The stranger was entitled to oppose the decree holder's application and he having filed his objections the court should have investigated his objections under Clause 2 of Rule 97.

3. For these reasons, I hold that the order of the lower court is unsustainable and allow the civil revision petition with costs.


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