ORDER
R. Banumathi, J.
1. This revision is directed against the Order of Rent Control Appellate Authority in R.C.A. No. 430/2005 on the file of VII Small Causes Court, Chennai, confirming the Order passed by the Rent Controller in M.P. No. 55/2004 in E.P. No. 189/2003 in RCOP No. 1043/2001 dated 18.03.2005 on the file of XI Judge, Small Causes Court, ordering removal of obstruction. Original owner of the premises is the Revision Petitioner.
2. Brief facts of the case are as follows:
The Revision Petitioner was the original owner of the Petition premises and she has purchased the same under Ex. R-1. She has borrowed money from one Akash Benefit Fund Limited, Kumbakonam by mortgaging the house property under Ex. R-2. Since the Petitioner could not repay the loan amount, the mortgaged property was brought into sale and the house was sold in Private Auction conducted by the Auctioneer Sri Raj and Co. The Respondent is the successful bidder at the Public Auction. It is stated that after issuing notice to the Petitioner, Akash Benefit Fund Limited has executed the Sale Deed in favour of the Respondent on 01.12.2000.
2.2. the Respondent issued a legal notice dated 04.01.2001 to the Tenant Jayalakshmi informing her about the purchase of the Petition premises and called upon her to attorn tenancy in favour of the Respondent. But the Tenant Jayalakshmi has not paid the rent to the Respondent.
2.3. The Respondent filed RCOP No. 1043/2001 seeking eviction of the Tenant on the ground of wilful default and owner’s occupation. After inquiry, the Rent Controller has ordered eviction on both the grounds. No appeal was preferred against the said Order. The Respondent has filed M.P. No. 189/2003 for executing the Order of eviction against the Tenant. By that time, the Tenant has vacated the premises and at the time of execution, the Tenant was not in occupation of the premises. The Petitioner obstructed delivery of possession. The Respondent has filed M.P. No. 55/2004 for removal of obstruction and the same was allowed by the Rent Controller, confirmed by the Appellate Authority. Allowing of application under Order 21, Rule 97 CPC and removal of obstruction is challenged in this Revision Petition.
3. Assailing the impugned Order, the learned Counsel for the Revision Petitioner has submitted that when there was no attornment of tenancy and no landlord-tenant relationship between the Respondent and the Jayalakshmi, the Decree cannot be executed. It was further submitted that the Petitioner who is the owner, cannot be termed as ‘obstructor’ who is claiming through the Tenant or acting at the instigation of the Tenant. It was also submitted that the Petitioner claims independent right and her claim of right cannot be determined in the Rent Control proceedings by filing application under Order 21 Rule97 CPC.
4. The learned Counsel for the Revision Petitioner has submitted that the Petitioner herself figured as RW-2 in the Rent Control proceedings and when the Revision Petitioner has not challenged the Order of eviction, it is not open to her to obstruct the delivery of possession execution proceedings. Submitting that the Petitioner has no right to challenge the Decree/the Order of eviction, the Courts below have rightly ordered removal of obstruction allowing the Petition filed under Order 21 Rule 97 CPC.
5. Can the inter-se dispute between the borrower/original owner and the auction purchaser in private purchase be determined in the rent control proceedings; and whether the Rent Control Authorities were right in ordering removal of obstruction are the points falling for consideration in this Revision Petition.
6. Facts are not in dispute. The Respondent is the private purchaser in the auction held by the auctioneer Sri Raj & Co. Akash Benefit Fund Limited executed the Sale Deed in favour of the Respondents on 01.12.2000. Challenging the sale and praying for declaration that the Sale Deed in favour of the Respondents is null and void, the Petitioner has filed O.S. No. 7874/2000 on the file of 17th Assistant Judge, City Civil Court. In O.S. No. 7874/2000, the Written Statement filed by Akash Benefit Fund Limited and the Respondent have been marked as Exs. R-3 to R-5 respectively. The Appellate Authority has observed that the Petitioner has lost the legal battle since the suit O.S. No. 7874/2000 was dismissed. It is to be pointed out that as against the dismissal of the suit in O.S. No. 7874/2000, the Petitioner has filed A.S. No. 383/2005 and the same is pending. It is stated that in the said appeal, in CMP No. 1288/2005, the Petitioner had also obtained an Order of Interim Injunction. Thus, there is a bonafide dispute between the Petitioner and the Respondent regarding the sale in favour of the Respondent.
7. Section 18 of the Tamil Nadu Buildings [Lease and Rent control] Act, gives all the powers of Civil Procedure Code to the Rent Controller. Civil Procedure Code applies to the Execution Proceedings in Rent Control matters.
8. Question arising for consideration is whether the Petitioner could be termed as ‘obstructor’ and can be ordered to be removed, under Order 21 Rule 97 CPC, which the Courts below have not adverted to.
9. Under Order 21 Rule 101 CPC, all questions arising on the application for removal of obstruction have to be decided by the Executing Court. Under Rule 101 CPC, Court has jurisdiction to decide all questions of title and all those questions are to be determined by the Court dealing with application and not by a separate suit. As per Order 21 Rule 103 CPC, where any application has been adjudicated under Rule 98 or Rule 100, CPC, the Order made thereon shall have the same force and be subject to the same conditions as to an appeal as if it were a Decree.
10. Thus an application under Order 21 Rule 97 CPC have to be decided like a suit and the order of adjudication shall have the same force as that of the Decree. Elaborately dealing with Order 21 Rule 97 in Noorduddin v. Dr. K.L. Anand, the Supreme Court has held as under:
Thus, the scheme of the code clearly adumbrates that when an application has been made under Order 21, Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the Decree Holder and the person claiming independent right, title or interest in the immovable property and an Order in that behalf is made. The determination shall be conclusive between the parties as if it was a Decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that preceding CPC Amendment Act, 1976, right of suit under Order 21, Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the legislature relegated the parties to an adjudication of right, title or interest in the immovable property under execution and finality has been accorded to it. Thus, the scheme of code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution.
11. It is quite evident that the matter/question arising between the parties are to be adjudicated like a suit. Between the Petitioner and the Respondent purchaser, complex questions of law and fact are arising, which is the subject matter of the dispute in O.S. No. 7874/2000. The rent control proceedings is a summary proceeding. The Rent Controller cannot go into the question of title between the Petitioner and the Respondent and elaborately adjudicate upon the questions arising between the Petitioner and the Respondent purchaser.
12. The Rent Control Authorities appear to have been swayed by the fact that the Petitioner has appeared as witness on the side of the Tenant, as Rw-2. Appellate Authority has observed that “the Petitioner has deposed as RW-2 in favour of the Tenant and if really the Petitioner had any interest over the property, she should have filed application to implead herself in RCOP, but the Petitioner has purposely stayed away from the RCOP proceeding’. This view of the Rent Control Authorities is per se erroneous. No useful purpose would have been served by impleading herself in the rent control proceeding, since the interse dispute and the legal questions arising between the Petitioner and the Respondent purchaser cannot be determined by the rent control authorities. That apart, the Petitioner had taken appropriate steps by filing the suit O.S. No. 7874/2000, challenging the Sale Deed in favour of the Respondent. In the rent control proceedings, the scope of enquiry being limited, the Petitioner cannot be faulted for not impleading herself in the rent control proceedings.
13. At the time of execution, Tenant has vacated and the Petitioner is stated to be in possession. The Petitioner who is the original owner of the house cannot be stated to be claiming through the Tenant/Judgment-Debtor. Absolutely there is no evidence showing that the Tenant has attorned tenancy to the Respondent. When the Tenant was not in occupation of the demised premises, eviction Order cannot be executed against the Petitioner, who is the original owner.
14. In concurrent findings, normally the revisional Court would not interfere. In the present case, order of eviction of the Petitioner and the removal of obstruction under Order 21 Rule 97 CPC, passed by both the authorities below is perverse and improper and the impugned Order is liable to be set aside.
15. In the result, the Order of Rent Control Appellate Authority in R.C.A. No. 430/2005 on the file of VII Small Causes Court, Chennai, (arising out of M.P. No. 55/2004 in E.P. No. 189/2003 in RCOP No. 1403/2001), is set aside and this Revision Petition is allowed. No costs. Consequently, C.M.P. No. 16441/2005 and VCMP No. 113/2006 is also dismissed.