LIVINGSTON Vs. SATHYAMMA

JUDGEMENT

(1.) The appeal is against the common order passed in E.A. No. 148/2005 in E.P. No. 21/2005 in O.S. No. 33/1998 on the file of the Subordinate Judge's Court, Nedumangad. The appellant herein is one of the decree holders. It is stated that there are several items of properties covered by the partition decree. The appellant filed E.A. No. 148/2005 invoking the provisions of Order XXI Rule 97 C.P.C., to remove obstruction and to effect the delivery, when certain persons obstructed the Amin to effect delivery on 30/10/2005. The same was in respect of the property demarcated in Ext. C1(b) plan to the final decree for partition. Apart from the application filed by the appellant as E.A. No. 148/2005, there were several claim petitions which have been numbered as E.A. Nos. 141/2005, 2/2009, 4/2009 and 5/2009 and all these were disposed of by the common order. Apparently the view taken by the Court below is that in a decree for partition, the application to remove obstruction filed by the decree holder and the other claim petitions cannot be gone into by the Court. While considering the matter, from paragraph 27 onwards, the Court has considered the nature of decree passed in a partition suit. The Court was of the view that, any attempt to evict a tenant or licensee or a tress passer purporting to be in execution of a decree for partition is not justified.

(2.) The learned counsel for the appellant Sri. P.S. Appu submitted that in the light of a recent judgment of a Division Bench of this Court, the petition under Order XXI Rule 97 C.P.C. is maintainable at the hands of the decree holder. Reliance is thus placed on Vasudeva Menon v. K.J. Plantation, 2012 3 KerLT 730 The learned counsel relied upon paragraph 19 of the judgment wherein the Division Bench was of the view that the decree obtained by the appellant therein for partition is a decree for possession and therefore the petition under Order XXI Rule 97 is maintainable. Our attention was also invited to the decision of the Madras High Court in Gopala and Another v. Fernandes, 1893 16 ILR(Mad) 127

(3.) The learned counsel for the respondent Sri. Ram Mohan G. submitted that, this is a case where the first respondent and similarly placed parties had claims to be established and without conducting an enquiry for going into the merits of their contentions, their applications were also dismissed.