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K.A. Prabhakaran Vs. Kuttian Prakashan and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 831 of 1984-E
Judge
Reported inAIR1985Ker204
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 97, 98, 99, 100 and 103
AppellantK.A. Prabhakaran
RespondentKuttian Prakashan and anr.
Appellant Advocate P. Santhalingam, Adv.
Respondent Advocate T.A. Ramadasan, Adv.
DispositionRevision dismissed
Cases ReferredBhagwat v. Kasturi
Excerpt:
- - c'.it was also found on the merits of the case that the obstructor has failed to prove his right to possession......by way of a separate suit before he is dispossessed in execution of a decree to which he is not a party. no application for adjudication of the rights of the obstructor would, however, lie under order xxi. rule 97. c.p.c. in anticipation of his dispossession in execution of a decree to which he is not a party.3. in mammoo v. krishnan, 1978 ker lt 901. vadakkel, j. following the decisions in george v. varkey. 1952 ker lt 660 : (air 1953 trav co 123), padmanabhan v. narayanan, 1955 ker lt 413 : (air 1955 trav co 225) and lakshmi ammal v. trav devaswom board. 1959 ker lt 458, has decided that no application at the instance of an obstructor would he before his dispossession in execution of the decree. his remedy is to resist execution and. in spite of his resistance if he is dispossessed,.....
Judgment:

Balakrishna Menon, J.

1. The only point for decision in this Civil Revision Petition at the instance of an obstructor against the execution of an order passed by the Rent Control Court is as to whether an obstruction petition is maintainable under Order XXI, Rule 97. C.P.C. The 1st respondent in this C.R.P. obtained an order against the 2nd respondent for eviction of building No. 10/108 of Tellicherry Municipality in R.C.P. No. 9/1981 on the file of the Rent Control Court, Tellicherry. In execution the revision petitioner offered resistance setting up a claim of tenancy of the building under the predecessor-in-title of the 1st respondent-landlord, and filed a petition purporting to be under Order XXI, Rule 97, C.P.C. for adjudication of his right to possession under a title different from the title of the judgment-debtor. The court below dismissed the application on the ground that the petition at the instance of the obstructor in execution is not maintainable under Order XXI, Rule 97, C.P.C'. It was also found on the merits of the case that the obstructor has failed to prove his right to possession.

2. Order XXI, Rule 97, C.P.C. provides for an application by the decree-holder for removal of resistance offered by any person against the decree-holder obtaining possession of the property. When such an application is filed by the decree-holder, all questions (including questions relating to right, title and interest in the property) arising between the parties are to be determined by the execution Court as provided for in Order XXI, Rule 101 of the C.P.C. as amended by the Code of Civil Procedure Amendment Act 1976. Rule 99 of Order XXI, C.P.C. provides for an application for restoration of possession by any person other than the judgment-debtor after he is dispossessed in execution of a decree to which he is not a party. Such an application by a dispossessed third party is also to be inquired into and adjudicated upon as provided for in Rule 101 of Order XXI, C.P.C. Orders passed under Rule 98 or Rule 100 on applications filed under Rule 97 or under Rule 99 have the same force and are subject to the same conditions as to appeal or otherwise as if the order concerned were a decree passed in a suit (vide Rule 103 of Order XXI, C.P.C.). A plain reading of the aforesaid provisions of Order XXI makes it clear that no application for adjudication of the right, title and interest of an obstructor would He before he is dispossessed in execution of a decree to which he is not a party. If, however, he is dispossessed, he is given a remedy under Rule 99 of Order XXI, C.P.C., to apply for restoration of possession to the execution Court. The execution Court on such application is required to adjudicate the question of the right, title and interest of the dispossessed obstructor and pass appropriate orders under Rule 100 and such order of the execution Court is to be treated as a decree for all purposes including for the purpose of appeal and second appeal. The only remedy of a dispossessed obstructor is to apply under Rule 99 to the execution Court and have his claim adjudicated upon by the execution Court itself. A separate suit at his instance after dispossession will not be maintainable in view of the aforesaid provisions of the C.P.C. as amended in 1976. This does not, however, preclude to the obstructor from having recourse to a civil Court by way of a separate suit before he is dispossessed in execution of a decree to which he is not a party. No application for adjudication of the rights of the obstructor would, however, lie under Order XXI. Rule 97. C.P.C. in anticipation of his dispossession in execution of a decree to which he is not a party.

3. In Mammoo v. Krishnan, 1978 Ker LT 901. Vadakkel, J. following the decisions in George v. Varkey. 1952 Ker LT 660 : (AIR 1953 Trav Co 123), Padmanabhan v. Narayanan, 1955 Ker LT 413 : (AIR 1955 Trav Co 225) and Lakshmi Ammal v. Trav Devaswom Board. 1959 Ker LT 458, has decided that no application at the instance of an obstructor would He before his dispossession in execution of the decree. His remedy is to resist execution and. in spite of his resistance if he is dispossessed, to apply for restoration of possession as provided for in Rule 99 of Order XXI, C.P.C. Kader J. in Chandrika v. Gangadharan 1983 Ker LT 953 and Paripooranan J. in Raman v. Karthikeyan 1984 Ker LT 1071 : (AIR 1984 Ker 208), have expressed the same view. Kader J. in Chandrika v. Gangadharan has followed the dictum laid down by a Full Bench of the Madhya Pradesh High Court in Usha Jain v. Manmohan Bajaj, AIR 1980 Madh Pra 146 overruling its earlier decision in Bhagwat v. Kasturi, AIR 1974 Madh Pra 26 taking a contrary view. We are in respectful agreement with the view expressed by the learned Judges of this Court in the decisions aforesaid that no application under Order XXI, Rule 97, C.P.C. would lie at the instance of an obstructor in anticipation of his dispossession in execution of a decree to which he is not a party.

We do not see any merit in this Civil Revision Petition and it is accordingly dismissed. No costs.


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