K.S. Paripoornan, J.
1. These two original petitions are filed under Articles 226 and 227 of the Constitution of India by the same petitioner against the same respondent. In O. P. No. 3368 of 1984, the Principal Munsiff, Cochin, is also impleaded asthe 2nd respondent. But that is not necessary and has also no relevance in the light of the subsequent events and the nature of the final disposal of the case. The legality of the proceedings in execution of R.C.P. No. 148 of 1982 is in issue. The petitioner in the O. Ps. is the landlord of a building (No. VI/789 --New number Vl/807, New Road, Cochin-2.) He initiated proceedings for eviction under Kerala Buildings (Lease and Rent Control) Act. The tenant in R.C.P. No. 148 of 1982 is the respondent. The Rent Control Court, Cochin, passed an order of eviction against the tenant dated 7-9-1983. The litigation had a chequered career. Only the minimum facts necessary for these proceedings are mentioned herein. Suffice it to say, that on 15-2-1984, the Principal Munsiff ordered delivery of the decree schedule building on 23-2-1984. By an order passed on 17-3-1984, the court ordered delivery on 28-3-1984. The Amin was deputed to give possession of the building. One M. Ibrahim, on behalf of one Ramunni (or Raman Unni?) caused obstruction. On 29-3-1984 the petitioner-decree-holder applied for warrant of delivery. This matter stood posted to 7-4-1984 and was adjourned from time to time for one reason or other. Finally, it stood posted to 15-6-1984. Dissatisfied with the same, the petitioner filed o. P. No. 3368 of 1984 in this Court, praying that the Principal Munsiff, Cochin (2nd respondent) be directed to issue a second warrant of delivery to deliver the decree schedule building in R. C. P. No. 148 of 1982 by removing all obstructions under Order XXI, Rule 35 C.P.C. and for other reliefs. Notice was ordered in the O. P. The entire records were called up, A petition was filed praying for the grant of interim relief, C.M.P. No. 10164/84. It was for the issue of a second warrant of delivery even before 12-4-1984, to deliver the decree schedule building. Notice was ordered. Final orders were passed in the said petition, by my learned brother Justice Sri V. Bhaskaran Nambiar during summer vacation, on 17-4-1984. It was represented before Court, then, that the Munsiff's Court had issued a fresh warrant for delivery of the property to the landlord-decree-holder (petitioner). So the petitioner was directed to take steps for delivery pursuant to the said order. The petitioner was also given liberty to execute any subsisting warrant issued bythe Munsiff's Court after the filing of O. P. No. 3368 of 1984. The hearing of the E. P., adjourned to 15-6-1984, was advanced to 11-4-1984, and on that day a fresh warrant of delivery (mentioned earlier) was issued directing delivery of the building on 12-4-1984. It was because of this order, my learned brother Bhaskaran Nambiar J. passed the aforesaid order on 17-4-1984 in C.M.P. No. 10164 of 1984. On this second warrant, the Amin filed a report to the effect that M. Ibrahim and his employees obstructed delivery, stating that they are not liable to vacate the building. So, no delivery could be effected. The decree-holder filed E. A. No. 153 of 1984 (and E. A. No. 156 of 1984) under Order XXI, Rule 35 of C.P.C. and also prayed for removal of the obstruction with the assistance of the Police. The learned Principal Munsiff, Cochin, by an order dated 12-4-1984, dismissed the petition. He held that the petitioner is not entitled to have the obstruction removed with the assistance of Police as prayed for. This order, Ext. P-2, dated 12-4-1984 is challenged in the subsequent O. P. No. 3721 of 1984. The prayer is to quash Ext. P-2 order of the Principal Munsiff dated 12-4-1984 aforesaid and deliver the decree schedule building by removing the obstruction, if any, under Order XXI, Rule 35 C.P.C. by this Court or to direct the Munsiff's Court, Cochin to issue a warrant of delivery and deliver the building immediately by removing the obstruct ion under Order XXI, Rule 35 of the C.P.C., etc.
2. The entire records relating to R.C.P. No. 148 of 1982, inclusive of the records relating to execution proceedings were called for by this Court on 13-4-1984. On hearing the petition, it appeared that in the light of the facts disclosed in the case, it was necessary to call for the entire records of the subordinate court to scrutinise the legality of the proceedings in the case. It was so done. That this Court has ample power to do so, in exercise of its powers, vested under Section 115 of C.P.C. was not disputed at the bar. As stated by Mulla -- C.P.C. Vol. I, 1981 Edn., page 668:
'The High Court may of its own motion call for any record under this section, if it appears desirable to do so (q). It is not necessary to the exercise of itspowers under this section that it should be put into motion by the party aggrieved by the proceeding complained of. It has been so held by the High Courts of Calcutta, Allahabad and Madras (r).' See also Meenakshi v. Lakshmi, (1967 Ker LT 777 at p. 789 (para 37) : (AIR 1967 Ker 135 at p. 143 (para 37) ).
3. One V. K. Ramunni who obstructed when the Amin went to the spot to give delivery to the petitioner in the O. P. (the decree-holder in R. C. P. 148 of 1982) has filed C.M.P. No. 14810 of 1984 in O. P. No. 3721 of 1984 to implead him as an additional respondent. Admittedly, he is not a party in the R.C.P. proceedings. Even on his own showing, he is only an obstructor. He avers that he is a stranger to the decree. Such a person has no right to get himself impleaded. Nor can such claim be adjudicated at this stage and more particularly in these proceedings. A stranger, third party to the decree, who is not bound by the decree and who is dispossessed, has got a right to demand an enquiry only after he is dispossessed in execution, invoking Order 21, Rule 100 of the C.P.C. complaining of dispossession. Till then a stranger-obstructor has no locus standi to move the Court. The law in this regard is well-settled. (The decisions adverted to hereinafter will also substantiate the same). So, I decline to entertain C.M.P. 14810 of 1984 for impleading the petitioner therein as a respondent in O. P. No. 3721 of 1984. C.M.P. No. 14810 of 1984 is dismissed.
4. I heard Sri R. Ganapathy Iyer, Advocate for the petitioner and Sri N. V. Mathew, Advocate, for the respondent (tenant) at length. At the outset, I may state that in view of the fact that the hearing of the execution petition which stood posted on 15-6-1984 was advanced to 11-4-1984, a fresh warrant of delivery was issued directing delivery of the building on 12-4-1984. The proceedings which took place as a sequel thereto culminated in Ext. P-2 order dated 12-4-1984 impugned in O. P. No. 3721 of 1984. So, in view of subsequent events, the grant of the prayers by considering the various matters detailed in O. P. No. 3368 of 1984 on merits has become unnecessary. The O. P. has really become infructuous. So, at this stage, I am not going into the merits of the various questions raised in O. P. No. 3368 of 1984. The order that ispassed in O. P. No. 3721 of 1984 will govern O. P. No. 3368 of 1984 as well.
5. The main attack of the petitioner, is against Ext. P-2 order of the principal Munsiff dated 12-4-1984 passed in E. A. No. 153 of 1984 in E. P. No. 242 of 1983 in R.C.P. No. 148 of 1982. When a fresh warrant of delivery was issued on 11-4-1984 directing delivery of the building on 12-4-1984 the Amin filed a report in Court to the effect that when he went to the building to effect delivery, one M. Ibrahim and his employees obstructed delivery stating that they are not liable to vacate the building and so no delivery was effected. The decree-holder moved the Court under Order XXI, Rule 35 of the C.P.C. for assistance of the police to obtain delivery. While rejecting the prayer, the learned Munsiff has observed as follows:
'The learned counsel for the petitioner would contend that merely because a third party has obstructed delivery of the building this Court should not slay its hands and compel the decree-holder tofile a petition for removal of obstruction. In this connection he would rely on the decision reported in 1983 Ker LT 953 (Chandrika v. Gangadharan). But this is a petition filed under Order 21, Rule 35-What is laid down in Order 21, Rule 35, C.P.C. is that where a decree is for a delivery of an 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. It is clear from this provision that this rule does not apply to persons who are not parties to the suit and not bound by the decree. Order 21, Rule 35 proceeds on the assumption that the person who claims to be in possession is one bound by the decree. It is clear from the report filed by the Amin that the obstructor is a stranger and not a person bound by the decree since he is not a party to the proceedings. Admittedly the obstructor is not a party to the R.C.P. or in the execution proceedings. It has been held in the decision reported in ILR (1971) 1 Ker 530 (Dr. Vijayaraghavan v. Mohamed), that where the obstructor is not bound by a decree because of his being not a partyto the same the Court is bound to investigate into the matter and adjudge the question judicially as contemplated under Order 21, Rule 97 (2), C.P.C. In the present case there is no evidence to hold that the obstructor is one claiming any right under the judgment-debtor or one Sponsored by the Judgment-debtor He is a stranger to the proceedings. Under the circumstances, I hold that the plaintiff is no entitled to have the obstruction removed with the assistance of the police as prayed for.'
I am afraid, the learned Munsiff failed to understand and give full effect to the decision of this Court in Chandrika v-Gangadharan (1983 Ker LT 953) brought to his notice. In the said case, citing with approval the decision of the Allahabad High Court in Jairaji v. Jagarnath Prasad (AIR 1976 All 11 my learned brother Justice Sri S. K. Kader held at page 955 as follows:
'Under Rule 35 of Order 21, the executing court can order delivery of the property to the party to whom it has been adjudged or to such person as he may appoint to receive delivery on his behalf, if necessary, by removing any person bound by the decree who refuses to vacate the property. Where a decree-holder or an auction purchaser is resisted by a person on behalf of the judgment-debtor or claiming under the judgment-debtor and if the Court is satisfied that the resistance or obstruction has been offered without any substance or claim of the obstructeron the face of it is unacceptable and cannot be said to be done in good faith, the Court is bound to remove the obstruction and put the decree-holder in possession. The matter is different when a stranger resists or obstructs the delivery claiming independent right in him. In either case, the decree-holder or auction purchaser cannot be compelled to move an application under Rule 97 of Order 21. A careful reading of Rule 97 shows that the provisions therein are only directory and not mandatory. Relying on and referring to the decisions of the T. C. High Court and some earlier decisions of the Allahabad, Bombay and Madras High Courts, it was held in Jairaji's case (AIR 1976 All 1), that the executing court has no power tocompel a decree-holder to move an application under Order XXI, Rule 97 CPC and that if, on the other hand, the executing Court is satisfied that the claim of the person who resists or obstructs is prima facie not acceptable; and not bona fide, the Court, will be within its rights to Issue a second warrant for delivery of possession and the Court is not bound to make an enquiry of the nature contemplated by Order XXI, Rule 97. But before a Court can pass an order for removal of obstruction or resistance, it has to be satisfied by making a prima facie enquiry as the circumstances of the case may require that the obstructor belonged to one or other of the categories mentioned in Order XXI, Rule 95 C.P.C. An enquiry at the instance of a third party in possession is contemplated only after he is dispossessed in execution and applies under Rule 100 of Order XXI complaining of such dispossession. After the amendment in 1976, a detailed enquiry into the question of title is contemplated under Rule 97 which is merely an enabling provision intended for the benefit of the decree-holder or auction purchaser. If Rule 97 is to be construed in such a way as conferring a right on a third party to the decree, to compel the decree-holder/auction purchaser to file an application under this rule, it will be only opening the flood gate of spurious claims and encouraging spurious claimants to indefinitely delay the execution.'
In an earlier decision in Ragho Prasad v. P. N. Agarwal (1969 All LJ 929), a Division Bench of the Allahabad High Court stated the law as follows:
'Under Rule 35 the execution Court directs delivery of possession of the property to decree-holder and to his agent in that behalf and, if necessary, it will direct the delivery of possession by removal of the judgment-debtor or any other persons bound by the decree who refuses to vacate the property, a person bound by the decree includes a person claiming through the judgment-debtor.
The provision for removal of the person bound by the decree who does not vacate takes into account a situation where resistance to possession is offeredor obstruction is made by the judgment-debtor or any other person bound by the decree on a ground which is patently without substance. It will include the case of a person who claims to be in possession in his own right and independently of the judgment-debtor but whose claim is on the face of it unacceptable and cannot be said to be made in good faith. In such a rase there is, in my opinion, no bar to the issue of fresh warrant for possession. Such a bar, it seems to me, cannot be spelled out either from Rule 35 or Rule 97. Where, however, resistance isoffered or obstruction is made by a judgment-debtor on a ground which appears to necessitate investigation, the proceeding will be under Rule 97. So also where resistance or obstruction proceeds from a person claiming to be in possession in his own right and independently of the judgment-debtor and whose claim cannot be rejected as not being made in good faith without investigation the decree-holder must proceed under Rule 97. While an ex facie consideration of the ground for resistance or obstruction can be had, under Rule 35 a ground for claim, which cannot be disposed of, is obviously without foundation needs to be investigated under Rule 97.'
The decision in Jairaji's case (AIR 1976 All 1), the decision relied on by Kader J. in Chandrika's case (1983 Ker LT 953) quoted with approval the earlier decision of the Allahabad High Court in Ragho Prasad's case (1969 All LJ 929) and the observations extracts herein-above; In Shri Devi v. Kashiram (AIR 1984 Raj 94), M. C. Jain J. in dealing with the scope of Order XXI, Rule 35, and Order XXI, Rule 97 of C.P.C. said at page 96 (para 6):
'I had an occasion to consider the question in Madanlal v. Hansraj, S. B. Civil Revision Petition No. 419 of 1980, decided on 14-9-1983, as to whether, the stranger has any right , to move theexecuting Court in connection with raising objections against the execution of the decree. That question was consideredin the light of the provisions of Order 21, Rule 97 C.P.C., as well as Order 21, Rule 35, C.P.C. It was observed in that case, as under:--
'If the legislature had intended, it could have granted a right to the obstructionist to maintain an obstruction petition or could have made it imperative for the decree-holder to move an application against the obstructionist or could have empowered the Court to give direction to the decree-holder to move such an application if it feels that the obstructionist without being heard could not be preceded against. But no such provision has been enacted obviously for the reason that the decree will never be allowed to be executed and hurdles will be created in the execution of the decree by raising false and frivolous claims and rights to continue to remain in possession of the property asserting that the obstructionist is not bound by the decree.
From the consideration of the case law, referred to above, the legal position that emerges is that the provision of Order 21, Rule 97, C. P. C. is only a permissive provision and not a mandatory one and the executing Court cannot compel or direct the decree-holder to move an application under Order 21. Rule 97 and a stranger to a decree for dispossession has no locus standi to move the executing Court, either informing it that he is in possession of the property in his own right and as such not bound by the decree or to claim investigation from the Court into the question of his right to continue to remain in possession of the property. Even when obstruction is reported by the officer executing the warrant of possession, still it is up to the decree-holder to move an application under Order 21, Rule 97, C. P. C., or not.'
Again, the same learned Judge, in Ganga Ram v. Devi Singh, (AIR 1984 Raj 98) said (at page 101, para 8):--
'It has been held that the third party has no locus standi to move any application under Order 21, Rule 97, C. P. C. and the decree-holder is not bound to move the court under that provision. For the decree-holder the provision of Order 21, Rule 97, C. P. C. is only a permissive provision and not a mandatory or imperative provision. It has been further found that a stranger has two remedies, one be--fore dispossession and another after dispossession. After dispossession he can make an application under Order 21, Rule 99, C. P. C. and before dispossession he has an independent remedy of filing a suitfor declaration and injunction. If the decree-holder would not have obtained any decree and he, like any other person, would have interfered in the possession of the present petitioner, what the present petitioner would have done? The present petitioner in that situation would have only approached the Court by filing a suit and would have claimed the relief of injunction and declaration from the Court and would have obtained interim relief in the form of temporary injunction. If a stranger who is being threatened with an injury of dispossession, whether in execution of decree or otherwise, can resort to the remedy of filing of the suit.'
Also at para 9, at page 101, his Lordship observed:
Experience shows that resistance and obstructions are placed in execution of the decree and provision of Order 21, Rule 97, C. P. C. has been tried to he invoked to stultify the decree or forestall the execution for years and the decree-holder even can be prevented to realise the fruits of the decree, thereby shaking faith in the credibility of legal system. If the strangers are allowed to have any say, then the decree-holders instead of seeking redress through courts of law would be compelled to adopt extra legal methods to get possession over the property. It may be mentioned that the stranger is not remediless. When the stranger has got an independent remedy it is understandable why the stranger should not avail of such a remedy.'
The above observations have great relevance in this case.
6. From the above discussion, it can-not admit of any doubt that the learned Munsiff, when he passed Ext. P2 order declined to grant the prayer of the petitioner to have the obstruction removed with the assistance of the police merely by holding that the obstruction was by a stranger and not a party to the proceedings. It may be 33 observed by the learned Munsiff that the obstructor may not be, one, claiming any right under the judgment-debtor or one sponsored by the judgment-debtor. Even then, as held by the decisions, Ragho Prasad's case, 1969 All LJ 929; Jairaji's case (AIR 1976 All 1), and Chandrika's case, 1983 Ker LT 953, even in the case of a person whoclaims to be in possession in his ownright, and independently of the judgment-debtor, but whose claim is, on the face of i unacceptable and cannot be said to be made in good faith, the court will issue a fresh warrant and will direct the delivery of possession by removal of such a person, who refuses to vacate the property. There is no bar in taking such a step flowing from either Order 21, Rule 35, C. P. C. or Order 21, Rule 97, C P C. But the court will so act only if the court is prima facie, satisfied, that resistance or obstruction, has been offered by a person on a ground, which is patently without substance, or whose claim is on the face of it unacceptable and cannot be said to be in good faith. In that behalf, it is open to the court to peruse through the materials already on record and/or require the decree-holder to furnish additional or fresh material. The petitioner has such a case also. This vital or basic aspect of the matter, laid down in the aforesaid decisions, was not adverted to and totally ignored by the learned Munsiff in adjudicating the prayer made by the plaintiff in the various petitions filed in court and in passing Ext. P2 order. On that short ground, Ext. P2 order is illegal. The learned Munsiff failed to give full effect to a later binding decision of this court reported in Chandrika's case, 1983 Ker LT 953, The earlier decision relied on by the learned Munsiff in Dr. Vijayaraghavan's case, ILR (1971) 1 Ker 530, was before the amendment of the provisions of C. P. C. in 1976 and is also distinguishable. The learned Munsiff has failed to exercise the jurisdiction vested in him under law in failing to adjudicate the matter in the light of a binding later decision of this Court in Chandrika's case 1983 Ker LT 953. I may also state that the learned Munsiff exercised the jurisdiction vested in him illegally and with material irregularity in passing Ext. P2 in the manner he did, by totally ignoring a vital aspect necessarily involved in the consideration of the matter. I hold that in passing Ext. P2, as it did, the lower court has committed a jurisdictional error and the interests of justice call far interference, in exercise of the powers vested in his court under Section 115 of C. P. C. Though in paragraph 4 of Ext. P2 the learnedMunsiff has referred to the decision in Chandrika's case, 1983 Ker LT 953, (see extract in para 5 supra), from a perusal of paragraph 4 of Ext. P2 order, it is evident that the crucial passages occurring in Chandrika's case 1983 Ker LT 953 approving the decision reported in Jairaji's case, AIR 1976 All 1 and its necessary impact (underlined portions in para 5 supra) were neither adverted to nor applied in passing Ext. P2 order. In the circumstances, it could also be said that Ext. P2 order discloses an error of law apparent on the face of the record which is liable to correction by this court in exercise of the jurisdiction vested under Article 227 of the Constitution of Indiaas well. It may also be acting 'in excess of jurisdiction'. Per Lord Denning -- in Baldwin & Francis v. Patents Appeal Tribunal, (1959) 2 AH ER 433 at pp. 447, 448.
7. I hereby annul or set aside the order passed by the Principal Munsiff, Cochin dated 12-4-1984 and passed in E. A. 153 of 1984 in E. P. 242 of 1983 in R. C. P. 148 of 1982, filed as Ext. P2 in O. P. No. 3721 of 1984. The principal Munsiff, Cochin, is directed to hear and dispose of the matter afresh in accordance with law and in the light of the observations contained herein within three weeks from today. In the circumstances, there shall be no order with regard to costs.
The office will send down the records at once to the lower court.