BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11/09/2009 CORAM THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN C.R.P.(PD)(MD)No.1288 of 2009 and M.P.(MD)No.3 of 2009 G.G.Kannan ... Petitioner Vs. Saleem ... Respondent Prayer Civil Revision Petition filed under Section 115 of Civil Procedure Code to set aside the order dated 18.08.2009 passed in unnumbered E.A. of 2009 in E.P.No.249 of 2002 in R.C.O.P.No.73 of 1985 on the file of Principal District Munsif Court, Kumbakonam. !For Petitioner ... Mr.R.Rajaraman ^ * * * :ORDER
This Civil Revision Petition is preferred against the order dated
18.08.2009 passed in unnumbered E.A. of 2009 in E.P.No.249 of 2002 in
R.C.O.P.No.73 of 1985 on the file of Principal District Munsif Court,
Kumbakonam.
2. An ex-parte order of eviction has been passed against one
Theskhnamoorthy, who is said to have let out the property to the petitioner
executing a rent deed in his favour by getting a sum of Rs.15,000/-(Rupees
fifteen thousand only) as consideration on 18.08.1998. According to the
petitioner, he was paying the rent of Rs.750/-(Rupees seven hundred and fifty
only) per month to the said Theskhnamoorthy till January 2008. Thereafter, it is
alleged that Theskhnamoorthy colluded with the decree holder and refused to
receive the rent. Subsequently an exparte eviction had come to have been passed.
3. Admittedly, the petitioner is not a party to the proceedings in
R.C.O.P.No.73/85. It is submitted by the petitioner that he is running a hotel
and tea stall in the name and style of “HOTEL SRIRAM CABE”. On an apprehension
that he may be evicted forcibly, it is said that he has filed a suit in
O.S.No.129 of 2008 on the file of the learned Principal District Munsif,
Kumbakonam, for permanent injunction restraining the said Theskhnamoorthy and
the decree holders or their agent men or anybody claiming through them from
interfering and evicting the plaintiff forcibly except under due process of law
and the said suit is pending. It appears that the decree holder has filed the
execution petition and delivery has been ordered.
4. The petitioner has filed an application under Order 21, Rule 97 of the
code of Civil Procedure, as an obstructor, but the trial Court, without even
numbering the petition, has returned it on the ground that the petition is not
maintainable. Thereafter, he has represented the said petition sustaining the
maintainability of the petition citing various decisions. Again, the Court has
returned the petition stating that the previous returns has not been complied
with. As against the said order returning the petition filed under Order 21,
Rule 97 of Civil Procedure Code, this Civil Revision Petition has been filed.
5. Order 21, Rule 97 of Civil Procedure Code, reads as follows:
“97.Resistance or obstruction to possession of immovable property:
(1) Where the holder of a decree for the possession of immovable property or the
purchaser of any such property sold in execution of a decree is resisted or
obstructed by any person in obtaining possession of the property, he may make an
application to the Court complaining of such resistance or obstruction.
(2) Where any application is made under sub-rule(1), the Court shall proceed to
adjudicate upon the application in accordance with the provisions herein
contained.”
In Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal and another reported in
(1997)3 SCC 694, the Honourable Supreme Court has held that the executing Court
must first adjudicate upon objections of the appellant on merits under Rule
97(2) r/w Rr.101 and 98 instead of insisting upon first handling over possession
and then moving of application by the appellant under Rule 99. In another
decision reported in AIR 2002 SCC 251 in N.S.S.Narayana Sarma and Others Vs. M/s
Goldstone Exports(p) Limited and Others, the Honourable Supreme Court has held
that all relevant issues arising in the matter on an application under Order
21, Rule 97 or Rule 99 shall be determined by Executing Court and not by a
separate suit.
6. When the delivery of possession of property has been obstructed and a
dispute arises as to whether the person causing obstruction is a sub-tenant of
the judgment debtor or not, the Execution Court should determine the question by
doing proper investigation under Order 21, Rule 97 of Civil Procedure Code.
7. It is the case of the petitioner that he is in possession from 1998
onwards running a hotel and tea stall in the name and style of “HOTEL SRIRAM
CABE” and he is not aware of the decree passed against one Thekshnamoorthy, who
is the decree holder. In this case, that the petitioner has filed a petition
under Order 21, Rule 97 of Civil Procedure Code, stating that he is in
possession. The trial Court ought to have entertained the petition, investigate
into the matter and decide the issue whether the obstruction was justified or
not. As the execution court to which an application is made under Order 21, Rule
97 of the Code refused to adjudicate upon the obstructions and the claim of the
petitioner who obstructed to the execution proceedings it had clearly failed to
exercise jurisdiction vested in it by law.
8. Consequently, the impugned order of the executing court returning the
petition filed under Order 21, Rule 97 of the Code is set aside and it is
necessary to direct the executing court to adjudicate upon the claim of he
petitioner as per provision of Order 21 Rule 97, Sub rule(2) CPC read with Order
21 Rule 98 within a period of one month from the date of receipt of a copy of
this order.
9. Accordingly, the above Civil Revision Petition is allowed. No costs.
ssl
To
The Principal District Munsif,
Kumbakonam.