ABDUL KHARIM Vs. SARASWATHY AMMA

JUDGEMENT

(1.) Petitioners, who are not parties to the decree put in execution, moved an application under Order 21 Rule 97 of the Code of Civil Procedure, to resist the execution of a decree of injunction obtained by the plaintiffs/respondents 1 to 7. In violation of the decree, the judgment debtor, as against whom the decision was rendered by the court on merits, has removed a gate, was the case of the decree holders to apply under Order 21 Rule 32 of the Code of Civil Procedure to proceed against him. At that stage, the petitioners moved an application under Order 21 Rule 97 of the Code of Civil Procedure setting forth a case that the property in which the plaintiffs/decree holders imputed violation of the decree of injunction had already been dedicated to the public and as members of the public they have interest in the subject matter so involved and their right and interest have to be adjudicated before proceeding former with the execution. The learned Munsiff taking note that possession over the immovable property was hot the disputed question covered by the execution, but, only violation of an order of injunction passed against the judgment debtor, concluded that the application moved by the petitioners is not maintainable. Propriety and correctness of that order is assailed in this Original Petition. Learned counsel for the petitioners submitting that under the common law a party should have a right to challenge an adverse decision rendered against him contended that the petitioners in the present case are fully competent to seek for an adjudication of their right and interest claimed over the property in respect of which a decree had been passed against another at the instance of the respondents 1 to 7/decree holders. Relying on "Nawab Shaqafath Ali Khan and Others v. Nawab Imdad Jah Bahadur and Others", 2009 5 SCC 162, the learned counsel contended that where a right of appeal is not provided, the legality of the adverse finding or order passed by the court could be challenged before this court invoking its visitorial jurisdiction under Article 227 of the Constitution of India. There is no merit in the challenge raised against the order of the learned Munsiff, is the submission of the learned counsel for the decree holders contending that even a suit which had been filed by the petitioners setting forth an identical claim had been dismissed. The application moved under Order 21 Rule 97 of the Code of Civil Procedure by an obstructer, it is submitted by the counsel, was not even entertainable, since such a challenge could lie only under Order 21 Rule 99 of the Code of Civil Procedure, that too when possession over an immovable property as such is involved in execution of a decree. What is being executed is only a decree of injunction as provided under Order 21 Rule 32 of the Code of Civil Procedure is also pointed out by the counsel to contend that the execution of such a decree is permissible within the parameters covered there under only against the judgment debtors or their assignees or agents who are bound by such decree "and none other.

(2.) In the given facts of the case not much dilation over the entertainability of the application moved by the petitioners under Order 21 Rule 97 or Rule 99 is called for. A decree for injunction can be executed only as provided under Order 21 Rule 32 of the Code of Civil Procedure. The applicability of Order 21 Rule 97 or Rule 99 will arise only where the decree relates to or involves possession over an immovable property. Whatever be the relief canvassed by the petitioners in their suit, evidently, by filing such a suit they had taken recourse for prosecution of their legal right If they are not bound by the decree passed in the case, it is open to them to take whatever measures available under law to protect their interest, but, resistance to a decree for perpetual prohibitory injunction contending that its execution would affect the right of the petitioners, that too as members of a public over an immovable property under Order 21 Rule 97 or 99 of the Code of Civil Procedure, cannot be entertained at all. The decision relied by the counsel, rendered by the apex court with reference to finding entered under Order 14 Rule 2 of the Code of Civil Procedure pointing out that if such finding or decision does not result in passing of a decree no appeal will lie against such finding or decision will no way assist the petitioners to contend that they can challenge the order impugned by way of the original petition under Article 227 of the Constitution of India. If they have any legal right to challenge Ext. P3 order, as if it were a decree, it should have been taken before the appropriate forum in accordance with law. The learned counsel at this stage made a request for reserving the right of the petitioners to assail Ext. P3 order by an appeal treating such an order passed on their application as a decree. Having challenged Ext. P3 order before this court invoking Article 227 of the Constitution of India and at the fag end seeking for a reservation to pursue the challenge against Ext. P3 order as if it were a decree, in the given facts of the case, I find, is not allowable.