PARAMESWARAN Vs. KUMARA PILLAI RAGHAVAN PILLAI

JUDGEMENT

(1.) I do not think that I should order notice in this appeal. According to me, the questions of law the appellants have raised are concluded by definite decisions on the matter. Though there is a view to the contrary taken obiter by a decision of Beaumont, C. J., in the Full Bench case in the Bombay High Court (Mukund Bapu v. Tanu Sakhu, AIR 1933 Bom 457 (FB)), the majority of the decisions in the matter are agreed on the principles.

(2.) In execution of a decree for immovable property, the decree holder respondent filed an execution petition in the Munsiff's Court, Ernakulam. Pursuant to the order of delivery made in those proceedings, the Amin came to the plaint schedule properly for effecting delivery on 21-12-1976. The appellants and three others who were not parties to the decree obstructed to their dispossession. The Amin reported the matter to the court.

(3.) Thereafter, the respondent decree holder filed E. A. No. 15 of 1977 praying for removal of obstruction. He did not bring the appellants on the party array in that petition. Of the obstructors who claimed exclusive possession of separate lots of property, two persons alone had been made parties to the E. A. That petition was decided in favour of the decree holder and delivery was ordered. The matter had been taken op in appeal and pending final adjudication, the proceedings in the execution petition had been stayed. After stay in the execution petition was vacated the E. P. was again taken up. There was no fresh application by the decree holder under O.21, R.35, C. P. C. nor was there any application under O.21, R.95, C. P. C. The executing court ordered delivery of the property on 3-1-1980. On that date, when the Amin came to the property the appellants obstructed their dispossession. The Amin thereupon reported the obstruction to the court and returned the warrant. The decree holder then preferred on 4-1-1980 an application under O.21, R.97 which is numbered as E. A. 13 of 1980 in E. P. 419 of 1975. To that petition the objection raised by the appellants was the bar of limitation under Art.129 of the Limitation Act, on the ground that the petition having been filed after 30 days, of the obstruction on 21-12-1976, is barred and not maintainable. The executing court found against the appellants. An appeal was filed before the District Court, which was transferred to the Sub Court, Ernakulam. The learned Sub Judge also concurred with the view of the executing court. The law on the matter has been well put up by a Division Bench of the Gujarat High Court in Manektel v. Ochhavlal, (AIR 1970 Guj 49).