B V KUPPU SWAMY Vs. SYED SIRAJ AHMED

JUDGEMENT

(1.) THE respondent obtained a decree in Original Suit 10195 of 1996 on 28-10-1996 against the defendants therein. Subsequently, he has taken out execution in No. 10062 of 1997 on the file of the X Additional Civil Judge, Mayo Hall, Bangalore, and it appears that the decree-holder/respondent had taken possession of the schedule property on 19-6-1997. The petitioner thereafter filed an application under Order 21, Rules 99, 100 and 101 read with section 151 and Section 47 of the CPC as obstructor and claimed that he was in lawful possession of the premises on his own right and he was unauthorisedly dispossessed by the respondents. Therefore, he claimed for the restoration of possession. The portion of the premises which was said to be in his possession is described in the schedule. After filing of this application and hearing the oral submissions of the Counsel for the parties, the Executing Court passed the order holding that the application was not maintainable and the petitioner was not entitled for the relief as sought for. Consequently, his petition was dismissed. Being aggrieved by that order, the petitioner filed this petition under Section 115 of the CPC.

(2.) HEARD.

(3.) THE learned Counsel for the petitioner has vehemently argued that the Court below has dismissed the petition without proper adjudication as required for the disposal of a suit. He also further submitted that the Court has committed an error in disposing of the petition only after hearing the arguments of the respective Counsel. He also emphasised the fact that the application filed by the petitioner is in the nature of a suit. Therefore, a full enquiry or trial is required as the petitioner who was wrongfully disposed cannot file any suit for restoring the possession.