{"id":70166,"date":"2002-03-22T00:00:00","date_gmt":"2002-03-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rajendran-gnanaolivu-rep-by-vs-sundar-gnanaolivu-given-up-on-22-march-2002"},"modified":"2015-01-15T17:27:16","modified_gmt":"2015-01-15T11:57:16","slug":"rajendran-gnanaolivu-rep-by-vs-sundar-gnanaolivu-given-up-on-22-march-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rajendran-gnanaolivu-rep-by-vs-sundar-gnanaolivu-given-up-on-22-march-2002","title":{"rendered":"Rajendran Gnanaolivu Rep. By vs Sundar Gnanaolivu (Given Up) on 22 March, 2002"},"content":{"rendered":"
Madras High Court<\/div>\n
Rajendran Gnanaolivu Rep. By vs Sundar Gnanaolivu (Given Up) on 22 March, 2002<\/div>\n
       \n\n  \n\n  \n\n \n \n  In the High Court of Judicature at Madras\n\n Dated:22.03.2002 \n\n Coram: \n\nThe Hon'ble Mr.  Justice P.  SATHASIVAM   \n\n Civil Revision Petition No.1018 of 2001 and C.M.P.No.5529 of 2001\n\n\n Rajendran Gnanaolivu rep. By\n  by Power Agent Veinu Gnanavolivu.       .. Petitioner\n\nvs.\n\n 1.Sundar Gnanaolivu (Given up)\n  2.M.V. Sundharavadhanam                               .. Respondents \n\n                Revision  Petition  filed  under  Article  227   of   the\nConstitution  of  India  against  the  order  dated  31.01.2001  made  in\nE.A.No.3919 of 2000 in E.P.No.151 of 2000 on the file of  IXth  Assistant\nJudge, City Civil Court, Chennai.\n!               For petitioners :  Mr.  R.  Srinivas\n\n^               For 2nd respondent:  Mr.  M.L.  Ramesh  \n\n:                                 ORDER  \n<\/pre>\n
                The  decree  holder in O.S.No.7414 of 1996 on the file of
\nIXth Assistant Judge, City Civil Court, Chennai is the petitioner in  the
\nabove revision filed under Article 227 of the Constitution of India.\n<\/p>\n
                2.  The petitioner filed the said suit against the  first
\nrespondent  herein  initially on the file of Original Side of this Court.
\nThe suit was filed for declaration of title and  recovery  of  possession
\nconcerning  the  Flat  No.1-D,  Marble  Arch,  No.4 and 5, Bishop Wallace
\nAvenue (East), Mylapore, Chennai 600 004.  The said suit was filed in the
\nyear 1991 and the same was numbered as C.S.No.653  of  1991  and  it  was
\ntransferred  to  the  City  Civil Court and re-numbered as O.S.No.7414 of
\n1996 on the file of  the  Second  Additional  Judge,  City  Civil  Court,
\nChennai.  The first respondent herein contested the suit and the same was
\ndecreed after full trial on 02.08.1999.  After the decree, the petitioner
\nfiled  the  execution  petition in E.P.No.151 of 2000 on the file of IXth
\nAssistant Judge, City Civil Court, Chennai.  Notice was  ordered  in  the
\nExecution  Petition  and  finally  the  first  respondent  herein was set
\nex-parte on 08.07.2000 and delivery of possession was ordered.  When  the
\nbailiff  went  to the suit property, first respondent’s people locked the
\ndoors and prevented the execution.  Therefore, the petitioner  filed  two
\nExecution Applications in the above Execution Petition for brake open the
\nlock and police aid respectively.  The second respondent at that point of
\ntime  filed  E.A.No.3919  of  2000  in the above Execution Petition under
\nSection 1 51 of the Code of Civil Procedure, seeking to record him as  an
\nObstructor in the proceedings.  The case of the second respondent is that
\nhe became  a  tenant  in  the  suit  property  in  January, 1999.  He was
\ninducted into the suit property by one Rukmani, has said to  be  a  Power
\nTenant Agent  of the first respondent.  The second respondent has alleged
\nthat there is a rental agreement in his favour.   The  petitioner  herein
\nfiled a counter opposing the said application.  The said petition is also
\nbarred by the provisions of Order 21 of the Code of Civil Procedure as in
\naccordance  with Rule 102 of the said order a transferee pendente lite of
\nthe suit property from the judgment debtor is not entitled to be heard as<\/p>\n
an Obstructor.  The Court below by the impugned order dated 31.01.2001  ,
\nallowed E.A.No.3919  of  2000.    Against  the said order, the petitioner
\npreferred the present revision.\n<\/p>\n
                3.  Heard Mr.  R.  Srinivas for the  petitioner  and  Mr.
\nM.L.  Ramesh for the second respondent.\n<\/p>\n
                4.   Learned  counsel  for the petitioner after taking me
\nthrough the relevant provisions, namely Order 21 Rule 97, Rule 102 of the
\nCode of Civil Procedure would contend that the court below failed to note
\nthat E.A.No.3919 of 2000 was barred by Order 21 Rule 102 of the  Code  of
\nCivil Procedure.  He further contended that the Executing Court failed to
\nsee  that  the  second respondent herein was claiming to be only a tenant
\n(transferee) from the first respondent herein and that the person who had
\nbecome the tenant during the pendency of a suit, namely,  O.S.No.7414  of
\n1996 could not be heard at all in execution proceedings as an Obstructor.\n<\/p>\n
                5.   On  the  other  hand, learned counsel for the second
\nrespondent supporting the  order  under  challenge  would  contend  that,
\ninasmuch  as  he  was  in  possession of the suit property at the time of
\ndecree, rightly recognised him as an obstructor, accordingly  prayed  for
\ndismissal of the revision.\n<\/p>\n
                6.  I have carefully considered the rival submissions.\n<\/p>\n
                7.  It is seen that the Civil Suit in O.S.No.7414 of 1996
\nfiled by  the  petitioner  was  decreed on 02.08.1999.  Based on the said
\ndecree, he filed E.P.No.151 of 2000 for  execution  of  the  same.    The
\njudgment  debtor   second respondent herein on receipt of notice did not
\nparticipate in the execution proceedings, therefore he was  set  ex-parte
\non 08.07.2000.  Accordingly, the Court below passed an order for delivery
\nof possession in terms of the decree.  When the Court bailiff went to the
\npremises  in  question for handing over possession, the same was objected
\nto by the second respondent herein stating that he is a statutory tenant.
\nIn order to substantiate his claim, E.A.No.3919 of 20 00 was filed before
\nthe Court below to recognise him as an Obstructor.\n<\/p>\n
                8.   Now,  I  shall  consider  the  relevant   provisions
\napplicable to  the issue in question.  Order 21 Rule 97 (1) and (2) reads
\nas under.\n<\/p>\n
”               97.  Resistance or obstruction to possession of immovable
\nproperty.-\n<\/p>\n
                        1.    Where  the  holder  of  a  decree  for  the
\npossession of immovable property or the purchaser of  any  such  property
\nsold  in execution of a decree is resisted or obstructed by any person in
\nobtaining possession of the property, he may make an application  to  the
\nCourt complaining of such resistance of obstruction.\n<\/p>\n
                        2.   Where any application is made under sub-rule
\n(1), the Court shall  proceed  to  adjudicate  upon  the  application  in
\naccordance with the provision herein contained.  ”
\nOrder 21 Rule 102 states thus,
\n”               102.   Rules not applicable to transferee pendente lite.-
\nNothing in Rules 98 and 100 shall apply to resistance or  obstruction  in
\nexecution  of  a  decree  for  the  possession of immovable property by a
\nperson to whom the judgment debtor has transferred the property after the
\ninstitution of the suit  in  which  the  decree  was  passed  or  to  the
\ndispossession of any person.  ”\n<\/p>\n
                9.  Mr.  R.  Srinivas, learned counsel for the petitioner
\nwould contend that, in the light of the fact that the Obstructor being  a
\ntenant  is  also  bound  by  the  decree  in  O.S.No.7414  of  1996 dated
\n02.08.1999, his claim need  not  be  considered  or  adjudicated  by  the
\nExecuting Court.    For that, he very much relied on Rule 102, which says
\nthat procedure prescribed under Rule 98 and 100 shall apply to resistance
\nor obstruction in execution of a decree for the possession  of  immovable
\nproperty  by  a  person  to  whom the judgment debtor has transferred the
\nproperty after the institution of  the  suit  in  which  the  decree  was
\npassed.   In  this  regard,  it  is  relevant to note that the petitioner
\nherein  plaintiff secured a decree against the first respondent herein
\njudgment debtor in O.S.No.7414 of 1996 on 02.08.1999.   Since  the  first
\nrespondent herein – Judgment Debtor was out of the country, he executed a
\nPower  in favour of Rukmani Ammal on 17.01.1998 giving full power to deal
\nwith the property in question.  It is the case  of  the  Obstructor  that
\nfrom  the  said  Rukmani Ammal he entered into an agreement of tenancy on
\n18.01.1999 and occupied the house.  In other words,  even  prior  to  the
\ndate  of  the decree dated 02.08.1999, the second respondent  Obstructor
\nentered into an agreement and was in possession of the suit property as a
\ntenant on 18.01.1999 with the power of attorney holder Rukmani Ammal.  In
\nsuch a circumstance, in the light of the language used in Sub-clause  (1)
\nof  Rule  97,  I  am  of  the  view  that the second respondent herein is
\njustified in filing E.A.No.3919 of 200 0 before the  Executing  Court  to
\nestablish that  he  is  an  obstructor.    This  aspect  has been rightly
\nconsidered by the Court below and allowed the said application.\n<\/p>\n
                10.  Learned counsel for the petitioner very much  relied
\non  the  decision  of  M.Srinivasan,J.,  (as  he then was) in the case of
\nAnnapoorni vs.  Janaki reported in 1995 (1) Law Weekly  141.    The  said
\njudgment  concentrates  only on the power of this Court under Section 115
\nof the Code of Civil Procedure and Article 227  of  the  Constitution  of
\nIndia.  He also relied on the decision of S.S.  Subramani,J., in the case
\nof Arthur Theodore  James  (deceased)  and  2  others  vs.    Mrs.  Hanna
\nRosaline and 4 others reported in 1999 (1)  L.W.    222.    In  the  said
\ndecision the learned Judge has observed that,
\n”               14.  …..  The so-called lease in favour of Savarinathan
\nwas entered into pending suit for partition and, therefore,  he  is  also
\nbound by  the  decree.   He cannot have a better claim than the so-called
\nlessor.  If Savarinathan has put up any construction pending  litigation,
\nhe is  bound  to  remove  the  same.  Merely, because the decree does not
\nprovide for removal of the structure, the power of  the  executing  Court
\nand the decree will not become inexecutable.  ”\n<\/p>\n
                11.   Learned  counsel for the petitioner has also relied
\non the decision of the Apex Court in the case of N.S.S.   Narayana  Sarma
\nvs.  M\/s.   Goldstone  Exports  (P)  Ltd.,<\/a>  reported in A.I.R.  2002 S.C.\n<\/p>\n
251.  While considering Rule 97, their Lordships have held,
\n”               16……..  The words “all questions arising between  the
\nparties  to  a  proceeding on an application under Rule 97″ would envelop
\nonly such questions as would  legally  arise  for  determination  between
\nthose parties.    In other words, the Court is not obliged to determine a
\nquestion merely because of the resister raised it.  The  questions  which
\nthe  executing Court is obliged to determine under Rule 101, must possess
\ntwo adjuncts.  First is that such questions should  have  legally  arisen
\nbetween  the  parties, and the second is, such questions must be relevant
\nfor consideration and determination between the parties.  e.  g., if  the
\nobstructor  admits  that  he  is  a  transferee  pendente  lite it is not
\nnecessary to determine a question raised by him that he  was  unaware  of
\nthe litigation when he purchased the property.  Similarly, a third party,
\nwho  questions  the  validity of a transfer made by a decree-holder to an
\nassignee, cannot claim that the question regarding its validity should be
\ndecided during executing proceedings.  ”\n<\/p>\n
It is to be noted that, in the very same judgment  their  Lordships  have
\nfurther held,
\n”               16.  ……    In  the  adjudication process envisaged in
\nOrder 21 Rule 97 (2) of the Code, the execution Court can decide  whether
\nthe  question  raised  by a resister or obstructor legally arises between
\nthe parties.  An answer to the said question also would be result of  the
\nadjudication contemplated in the sub-section.”
\nIt  is  clear  that  it is for the Executing Court to decide the question
\nraised by the resister or obstructor.  In our case, the claim made by the
\nobstructor had been considered by the Executing Court.  In the  light  of
\nthe conclusion of the Supreme Court, the decision referred to in 1999 (1)
\nL.W.  222 (cited supra) is not helpful to the petitioner’s case.\n<\/p>\n
                12.  It is useful to refer the judgment  of  the  Supreme
\nCourt reported  in  the  case of Shreenath vs.  Rajesh<\/a> reported in A.I.R.
\n1998 S.C.  18 27.  This judgment was referred to by the  Executing  Court
\nin support  of  its conclusion.  After considering Sub-clause (1) of Rule
\n97, their Lordships have held that,\n<\/p>\n
                13.  …  all disputes  relating  to  the  property  made
\nunder  Rules  97  and 99 is to be adjudicated under Rule 101, while under
\nunamended provision under sub-clause (2) of Rule 97, the executing  Court
\nissues  summons  to  any  such  person  obstructing  possession  over the
\ndecretal property.  After investigation under Rule  98,  the  Court  puts
\nback  a decree-holder in possession where the Court finds obstruction was
\noccasioned without any just cause, while under Rule 99 where  obstruction
\nwas  by  a  person  claiming  in  good  faith  to be in possession of the
\nproperty on his own right, the Court has  to  dismiss  the  decree-holder
\napplication.   Thus even prior to 1976 right of any person claiming right
\non his own or as a tenant, not party to the suit such person’s right  has
\nto  be  adjudicated  under  Rule  99  and he need not fall back to file a
\nseparate suit.  By this, he is saved from a long litigation.  So a tenant
\nor any person claiming a right in the property, on his  own,  if  resists
\ndelivery of possession to the decree-holder the dispute and his claim has
\nto  be  decided after 1976 Amendment under Rule 97 read with Rule 101 and
\nprior to the amendment under Rule 97 read with Rule 99.   However,  under
\nthe  old  law,  in  case  order  is  passed  against the person resisting
\npossession under Rule 97 read with Rule 99 then by virtue of Rule 103, as
\nit then was, he has to file a suit to establish his right.  But now after
\nthe amendment one need not file suit even in such cases as  all  disputes
\nare  to  be settled by the Executing Court itself finally under Rule 101.
\n…..”\n<\/p>\n
It is clear that even prior to 1976 and after  the  said  amendment,  the
\nperson  claiming right as a tenant in respect of the property in question
\nneed not file a separate suit and he is entitled to file  an  application
\nin the Executing Court to prove his claim.  As stated earlier, the second
\nrespondent   herein  rightly  filed  an  application  and  the  same  was
\nconsidered by the Executing Court.\n<\/p>\n
                13.   It  is  also relevant to refer the case of Brahmdeo
\nChaudhary vs.  Rishikesh Prasad Jaiswal and<\/a> another reported in 1997  (3)
\nS.C.C.   694 , wherein their Lordships have held that, the resistance and
\n\/ or obstruction to possession of immovable property as  contemplated  by
\nOrder 21, Rule 97 CPC could have been offered by any person.  The words ”
\nany  person”  as  contemplated  by  Order  21,  Rule 97, sub-rule (1) are
\ncomprehensive enough to include  apart  from  judgment-debtor  or  anyone
\nclaiming  through  him  even persons claiming independently and who would
\nbe, therefore, be total strangers to the  decree.    In  that  case,  the
\nrespondent  one though seeking only reissuance of warrant for delivery of
\npossession with aid of armed force, in substance  sought  to  bypass  the
\nprevious  resistance and obstruction offered by the appellant on the spot
\nand their Lordships in such a circumstance have held,
\n”               Thus  it  was  squarely covered by the sweep of Order 21,
\nRule 97, sub-rule (1) CPC.  Once that happened the procedure laid down by
\nsubrule (2) thereof had to be followed by the Executing Court.  The Court
\nhad to proceed to adjudicate upon the application in accordance with  the
\nsubsequent provisions contained in the said order.”\n<\/p>\n
                14.  In the case of Bhagwat  vs.    Kasturi  reported  in
\nA.I.R.   1974 Madhya Pradesh 26, the Division Bench has held that as soon
\nas the third person resists or  obstructs  delivery  of  possession,  the
\nExecuting  Court  must  stay  its  hands,  until the decree holder either
\nsatisfies it that such a person is bound  by  the  decree,  or  makes  an
\napplication under Order 21, Rule 97, complying resistance or obstruction.
\nThe third person can give intimation in writing to the Execution Court of
\nhis  intention  to  resist  or obstruct after or even before a warrant of
\npossession is issued.\n<\/p>\n
                15.  In the case of Bhanwar  Lal  vs.    Satyanarain  and<\/a>
\nanother reported in J.T.  1994 (6) S.C.  626, the following conclusion of
\ntheir Lordships is relevant.\n<\/p>\n
”               4.  ….  A reading of  Order  21  Rule  97  CPC  clearly
\nenvisages   that   “any   person”  even  including  the  judgment  debtor
\nirrespective whether he claim derivative title from the  judgment  debtor
\nor  set  up  his  own right title or interest de horse the j ebtor and he
\nresists execution of a decree, then the court in addition  to  the  power
\nunder  Rule  35  (3) has been empowered to conduct an enquiry whether the
\nobstruction by that person in obtaining possession of immovable  property
\nwas legal or not.  ”\n<\/p>\n
                16.  In  the  case  of  Shreenath vs.  Rajesh<\/a> reported in
\n1998 A.I.R.  S.  C.W.  1619, the Supreme Court has held  that  the  third
\nparty  in possession of a property claiming independent right as a tenant
\nnot a party to the decree for  possession  of  immovable  property  under
\nexecution,  could  resist  such  decree  by  seeking  adjudication of his
\nobjections under Order 21 Rule 97.\n<\/p>\n
                17.  In the light of the legal position as  well  as  the
\nprocedure  prescribed  in  the  Code and also of the fact that the second
\nrespondent – Obstructor became a tenant even prior to  the  date  of  the
\ndecree, I hold that his application in E.A.No.3919 of 2000 to declare him
\nas  an  Obstructor is valid and the Executing Court is fully justified in
\nadjudicating the matter.   Accordingly,  I  do  not  find  any  error  or
\ninfirmity in  the  order  impugned.    Consequently,  the  civil revision
\npetition fails and the same is dismissed.  No costs.\n<\/p>\n
                18.  In view of  the  dismissal  of  the  main  revision,
\nconnected CMP., is also dismissed.\n<\/p>\n
Index:Yes\/I
\nkh
\n22.03.2002
\nP.  Sathasivam,J.,<\/p>\n
To
\nThe Ixth Assistant Judge
\nCity Civi Court
\nChennai.\n<\/p>\n
Pre-delivery Order in
\nC.R.P.No.1018 of 2001
\nDated:22.03.2002 <\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Rajendran Gnanaolivu Rep. By vs Sundar Gnanaolivu (Given Up) on 22 March, 2002 In the High Court of Judicature at Madras Dated:22.03.2002 Coram: The Hon’ble Mr. Justice P. SATHASIVAM Civil Revision Petition No.1018 of 2001 and C.M.P.No.5529 of 2001 Rajendran Gnanaolivu rep. By by Power Agent Veinu Gnanavolivu. .. Petitioner vs. 1.Sundar […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-70166","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nRajendran Gnanaolivu Rep. 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