DEVASSIA JOSEPH Vs. VYSYA BANK LTD

JUDGEMENT

(1.) This appeal is directed against the order of the Additional Sub Court, Kottayam in E.A.No. 940 of 1990 in O.S. No. 359 of 1980.

(2.) In execution of a decree obtained by the respondent in O.S. No.359 of 1980, 60 1/2 cents of land was brought to sale. When the Ameen of the court attempted to take possession of the property and deliver to the decree holder Bank, he was obstructed at the spot by the appellant. Appellant contended that he is a tenant of 2 acres 46.5 cents of land in Survey Nos. 738/14A.738/14B and 738/16 of Athirampuzha Village, Kottayam Taluk and that 60 1/2 cents of land brought to sale and sought to be taken delivery of is a part of the property included in his lease deed. Appellant also handed over to the Ameen, a copy of the alleged lease deed and a copy of the memorandum of appeal filed by appellant before the Land Reforms Appellate Authority against the order of Land Tribunal, which decided against the plea of tenancy set up by him. He also filed E.A.No. 940 of 1990 with the Ameen. Accordingly, the Ameen returned the warrant. The decree holder filed objection to this E.A. and requested for a second delivery of the warrant. The appellant contended that the court below, without issuing notice to him or properly considering the claim made by him, passed an order for issue of fresh delivery warrant for removal of the obstruction of the appellant.

(3.) The court below found that the appellant has no right to apply for adjudication of his right at this stage and that his remedy is to apply under R.99, O.21 of Code of Civil Procedure to the execution court after dispossession. The court below also held that it was also open to him to file a suit for establishing his rights before dispossession. The court below found that the obstruction is without any bona fides and not in good faith and in that view of the matter, it ordered a fresh delivery warrant to remove the obstruction.